text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Robert J. Gladwin, Judge.
Appellant Maria Neal appeals from the May 2, 2007 order granting summary judgment in favor of appellee Dr. Paul Farris, as well as the May 23, 2007 order denying her motion for reconsideration and to set aside the previous order. On appeal, she argues that the circuit court erred in granting appellee’s motion for summary judgment before the time for submitting supplemental supporting materials had expired and in denying her motion for reconsideration and to set aside the May 2, 2007 order. We affirm.
This appeal arises from a medical-malpractice action, which accrued, at the latest, on August 9, 2002, the last day appellee provided treatment to appellant. The original complaint was filed by appellant on March 9, 2004, alleging, among other things, that appellee violated the standard of care as a physician and was negligent in the treatment of appellant. The complaint was filed within the applicable two-year statute of limitations for medical-malpractice claims pursuant to Ark. Code Ann. § 16-114-203 (Repl. 2006). Appellant took a voluntary non-suit on August 8, 2005, and refiled the present matter on August 8, 2006, pursuant to the saving statute, Ark. Code Ann. § 16-56-126 (Repl. 2005).
Appellee propounded written discovery on appellant pursuant to both the original and re-filed complaint, and appellant responded on September 1, 2004, and January 30, 2007, respectively. On February 6, 2007, appellee filed a motion for summary judgment asserting that appellant had failed to identify an expert witness as required by Ark. Code Ann. § 16-114-206 (Repl. 2006). Attached to the motion for summary judgment was an affidavit from Dr. Scott J. Stern, which asserted that appellee’s treatment of appellant was in every way consistent with the appropriate standard of care. Appellee also incorporated all the pleadings on file as well as appellant’s answers to interrogatories and responses to requests for production of documents.
Had there been no request for extensions, the original date to respond to appellee’s motion for summary judgment would have been February 27, 2007. However, appellant did move for extensions on two separate occasions. On February 28, 2007, the circuit court entered an order granting appellant’s motion and extending her time to respond for an additional three weeks, until March 22, 2007. Subsequently, on March 27, 2007, the circuit court entered an additional order extending appellant’s time to respond an additional thirty days, until April 22, 2007. Appellant filed her response to appellee’s motion for summary judgment on April 23, 2007, but failed to attach an affidavit of an expert witness.
Appellee filed a reply to appellant’s response to the motion for summary judgment three days later on April 26, 2007, and on May 2, 2007, the circuit court entered its order granting appellee’s motion for summary judgment. In the order, the circuit court acknowledged the respective briefs filed by the parties and made a specific finding that the “Arkansas Supreme Court has held that in a malpractice case, a defendant is entitled to Summary Judgment when it is shown that the plaintiff has no qualified expert to testify as to the explicable standard of care.” The circuit court stated that upon review of the pleadings filed and evidence presented, plaintiff had failed to meet the burden regarding a qualified medical expert.
Five days after the order was entered, appellant filed a supplemental response to appellee’s motion for summary judgment, this time including an attached affidavit from Dr. Dale H. Rice. She also filed a motion for reconsideration and to set aside the May 2, 2007 order granting summary judgment. The circuit court denied both motions in its order filed on May 23, 2007, and appellant filed a timely notice of appeal on May 25, 2007, regarding both the May 2, 2007 and May 23, 2007 orders. This appeal followed.
Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Wagner v. General Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Pakay v. Davis, 367 Ark. 421, 241 S.W.3d 257 (2006). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. See id. Appellate courts view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. See id.
Appellant acknowledges that, as the moving party, appellee had fourteen days after her response to his motion for summary judgment was served within which to serve a reply. Appellee waited only three days, filing his reply on April 26, 2007, and the circuit court did not hold a hearing on the motion but granted appellee’s motion for summary judgment just nine days later on May 2, 2007. Five days after that, on May 7, 2007, which was only fourteen days after appellant had filed her response, she filed a supplemental response to the motion for summary judgment for the purpose of submitting an affidavit from Dr. Dale H. Rice. Appellant asserts that she, as the non-moving party in the summary judgment proceeding, was entitled to submit supplemental supporting materials at any time within those fourteen days after her response was served.
Rule 56 of the Arkansas Rules of Civil Procedure provides in pertinent part:
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. Absent leave of court for good cause shown, the party must file any such motion no later than 45 days before any scheduled trial date.
(c) Motion and Proceedings Thereon.
(1) The motion shall specify the issue or issues on which summary judgment is sought and may be supported by pleadings, depositions, answers to interrogatories and admissions on file, and affidavits. The adverse party shall serve a response and supporting materials, if any, within 21 days after the motion is served. The moving party may serve a reply and supporting materials within 14 days after the response is served. For good cause shown, the court may by order reduce or enlarge the foregoing time periods. No party shall submit supplemental supporting materials after the time for sewing a reply, unless the court orders otherwise. The court, on its own motion or at the request of a party, may hold a hearing on the motion not less than 7 days after the time for serving a reply. For good cause shown, the court may by order reduce the foregoing time period.
(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion. A partial summary judgment, interlocutory in character, may be rendered on any issue in the case, including liability.
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(Emphasis added.) As Rule 56 states, a defending party may move with or without supporting affidavits for a summary judgment in his favor. In the instant case, appellee did submit an affidavit with his motion. Appellant was then required to serve a response and supporting materials, if any, within twenty-one days from the date the motion was served. Rule 56 specifically allows the time period to respond to be lengthened by the circuit court for good cause, and in this case, the time period was lengthened on two separate occasions. Once her response was served on April 23, 2007, appellee had fourteen days in which to file a reply, but he filed it only three days later on April 26, 2007.
As highlighted above, Rule 56(c)(1) states that “[n]o party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise.” Appellant asserts that the rule gives the moving party and the non-moving party a full fourteen days after the non-moving party’s response is served within which to submit supplemental supporting materials. Appellant argues that is precisely what occurred when she filed her supplemental materials on the fourteenth day after filing her response to appellee’s motion. Appellant points out that the rule does not indicate that the non-moving party must request or obtain leave from the court in order to submit the supplemental supporting materials. Accordingly, she argues that it was reversible error for the circuit court to grant appellee’s motion for summary judgment before the fourteen-day time period for submitting supplemental supporting materials had expired. See First Nat’l Bank, Gdn. v. Newport Hosp. & Clinic, 281 Ark. 332, 663 S.W.2d 742 (1984) (where the supreme court held that it was error for the trial court to grant summary judgment in a medical-malpractice case before the plaintiff s interrogatories and requests for production of documents had been answered).
Appellant also refers to the language of Rule 56(c)(1) that states that the circuit court, on its own motion, or at the request of a party, may hold a hearing on the motion not less than seven days after the time for serving a reply. She acknowledges that the circuit court may, by order, reduce this time period, but she reiterates that in the instant case no order reducing that time period was entered.
Finally, appellant asserts that the affidavit of Dr. Dale H. Rice that was attached to her supplemental response to the motion for summary judgment clearly shows that there are genuine issues of material fact and that appellee is not entitled to judgment as a matter of law. She claims that her supplemental supporting materials, specifically Dr. Rice’s affidavit, was timely submitted pursuant to Rule 56. Accordingly, she reasserts that the circuit court committed reversible error in prematurely granting appellee’s motion for summary judgment and thereafter by denying her motion for reconsideration and to set aside motion for summary judgment.
Appellee concisely explains the time line of all the pleadings filed in this matter, and additionally points out that appellant failed to file a pleading that could have easily resolved this entire situation. Appellee cites Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994), where our supreme court upheld a grant of summary judgment where the non-moving party failed to file an affidavit substantiating the fact that they were having problems gathering facts to support their opposition to summary judgment, as was their right under Ark. R. Civ. P. 56(f). The supreme court stated that had they done so, the circuit court might well have foregone a decision on summary judgment for an additional period of time pursuant to Rule 56(f) so that other discovery could be pursued. In the instant case, appellant had a significant amount of time, arguably from as early as August 2002, to identify a medical expert to support her claims as required by Ark. Code Ann. § 16-114-206. See also Spring Creek Living Ctr. v. Sarrett, 319 Ark. 259, 890 S.W.2d 598 (1995) (reiterating that it is incumbent upon a plaintiff to identify an expert and attach an affidavit or deposition testimony or a physician to respond to a defendant’s motion for summary judgment). She failed to do so and further failed to notify the circuit court of the circumstances surrounding her inability to identify a medical expert.
While Jenkins dealt with the party’s diligence, or lack thereof, in completing discovery, as opposed to obtaining medical expert testimony to refute the moving party’s motion for summary judgment, the analysis is analogous. In Jenkins, the circuit court acknowledged that the non-moving party failed to exercise due diligence in completing discovery and exacerbated the problem by failing to file an affidavit substantiating the allegation that they were having difficulty gathering the facts to support their opposition to summary judgment as contemplated by Rule 56(f). Appellant likewise never sought this relief, and never afforded the circuit court a basis from which to forego ruling on the motion for summary judgment.
Regarding appellant’s argument that she should have been given fourteen days after her response was filed to supplement that response, appellee cites Southeastern Distributing Co. v. Miller Brewing Co., 366 Ark. 560, 237 S.W.3d 63 (2006), where our supreme court looked at a similar issue and reviewed the procedural history of the case and the pleadings filed therein. The appellee in that case filed a motion for summary judgment, and the appellant obtained a thirty-day extension to file its response. The appellant filed its response on the thirtieth and final day of the extension, and the appellee filed a reply seven days later. The circuit court held a hearing on the motion five days later and subsequendy entered an order of summary judgment in favor of the appellee. The appellant then argued that, pursuant to Rule 56, both parties should have been allowed to file supplemental supporting materials for at least fourteen days after it filed its response, which would have been two days after the hearing was held, and that the circuit court was not authorized to hold a hearing until that entire time period had elapsed.
The supreme court clarified that the moving party may serve a reply and supporting materials within fourteen days of the service of the non-moving response, and that the circuit court may hold a hearing on the motion not less than fourteen days after the time for serving a reply, but that neither is mandatory. Southeastern Distributing Co., supra. The supreme court acknowledged that the appellant had received additional time to file its response, and seemed to give the additional thirty days great weight in determining that both parties were provided adequate time to present evidence and argument.
In the instant case, appellant was granted two separate extensions that spanned nearly two months from when the response was originally due; however, nothing in the record reflects that appellant ever gave a reason for her need for the continuances. She failed to request additional time for the specific purpose of trying to obtain a medical expert’s opinion. Then after two months of extensions, she finally filed a response, still without supporting materials and with no request for additional time or an explanation of the lack of medical expert testimony. Appellee responded quickly, filing a reply in only three days, and the circuit court entered its ruling a week later. It was not until five days after the entry of the order that appellant finally submitted the requisite affidavit attached to a supplemental response to the motion for summary judgment.
Appellee characterizes appellant’s filing as an “impermissible last-minute submission.” Appellant failed to timely meet her burden of proof by providing the necessary medical expert testimony to rebut the evidence presented by appellee in support of his motion for summary judgment. There was ample time for her to do so, as well as time to seek additional relief from the circuit court pursuant to Rule 56(f); she simply did not do so. We hold that no abuse of discretion occurred when the circuit court granted the motion for summary judgment and denied appellant’s motion for reconsideration and to set aside the summary judgment.
Affirmed.
Robbins and Heffley, JJ., agree.
Appellee highlights this sentence in the current form of Rule 56(c)(1), from 2007, and points out that the Addition to Reporter’s Notes, 2006 Amendment, subdivision (c)(1) was amended to allow a circuit court to reduce the time periods for responses and replies rather than to only allow the enlargement of the time period. | [
-112,
-24,
-11,
28,
72,
99,
40,
14,
82,
67,
111,
115,
-17,
-29,
21,
111,
-62,
121,
97,
121,
-13,
-77,
7,
96,
102,
-6,
74,
-41,
-72,
111,
-28,
-4,
77,
112,
-62,
-59,
70,
67,
-51,
80,
-58,
15,
-119,
109,
89,
-63,
56,
-74,
88,
79,
53,
-2,
-25,
43,
56,
-57,
104,
42,
91,
60,
-60,
-88,
-102,
13,
-21,
20,
-79,
4,
-97,
99,
-40,
122,
-112,
-79,
48,
-20,
112,
-74,
-126,
116,
107,
-39,
8,
102,
98,
-79,
13,
-27,
56,
-72,
14,
28,
31,
-26,
-111,
9,
75,
13,
-74,
-67,
116,
20,
7,
126,
108,
77,
29,
44,
10,
-49,
-110,
-79,
-57,
96,
-100,
3,
-29,
19,
48,
81,
-51,
-32,
92,
69,
51,
-101,
-50,
-78
] |
D.p. Marshall Jr., Judge.
Dr. E. John Landherr operated on Robin Taylor’s back at Sparks Regional Medical Center. Problems developed with the surgical wound, including a staph infection. Taylor eventually sued Dr. Landherr, the Medical Center, the Sparks Medical Foundation, and five John Does. The circuit court granted a nonsuit of all Taylor’s claims against the John Does. After discovery, the court granted summary judgment to all the named defendants. The court ruled that Taylor’s claims against Dr. Landherr, the Medical Center, and the Foundation failed as a matter of law because Taylor had no expert testimony establishing a deviation from the standard of care or proximate cause. In addition, the court found that the Foundation did not exist as a separate entity when the malpractice allegedly occurred and therefore was not a proper party to the action. Taylor appeals.
I.
We must resolve an unusual procedural issue at the threshold. On the day before this case was submitted for decision by our court, Taylor filed a motion suggesting that Dr. Landherr died in November 2007. This was months after the parties had filed all their appellate briefs. Taylor has moved this court to appoint Dr. Landherr’s widow, Patsi Landherr, as Special Administratrix of The Estate of E. John Landherr, M.D., revive the appeal as to Dr. Landherr, and substitute the Special Administratrix in his place. Dr. Landherr’s lawyers have no objection to these steps.
The cluster of issues raised by Taylor’s motion rarely arises on appeal. If Dr. Landherr had died after this case had been submitted but before we handed down our decision, then precedent would allow us to dodge the revivor and substitution questions by making our opinion nunc pro tunc to a date before he died. Pool v. Loomis, 5 Ark. 110, 115 (1843) (supplemental opinion upon motion). But this is not what has happened. Dr. Landherr died more than two months ago, and his death was suggested to us before submission. So we must answer the resulting procedural questions.
The first question is whether Taylor’s claims against Dr. Landherr may be revived at all. They may indeed. Actions for “wrongs done to the person or property of another” survive the alleged tortfeasor’s death. Ark. Code Ann. § 16-62-101(a)(l) (Repl. 2005). Taylor’s personal-injury claims against her former doctor therefore have not been lost.
The second question is whether this court or the circuit court should act on Taylor’s request to appoint the Special Administratrix. Taylor asks this court to do so, and cites Rule of Civil Procedure 25 and Ark. Code Ann. §§ 16-62-106 and 107 (Repl. 2005) as authority for us to act. In support of her motion, she attaches an order from the Franklin County Circuit Court in another pending case against Dr. Landherr. This order finds that Ms. Landherr consents to serve as Special Administratrix of her husband’s estate to defend that case and appoints her to do so.
Rule 25, however, does not authorize this court to grant the motion. This rule applies only to circuit courts, and we may not act pursuant to it. Constitution State Ins. Co. v. Passmore, 18 Ark. App. 247, 247-48, 713 S.W.2d 255, 255 (1986) (per curiam). But the statutes and precedent support the relief Taylor seeks from this court.
The special-administrator statute authorizes appointment by “the court before which the suit or suits are pending, on the motion of any party interested, to appoint a special administrator, in whose name the cause shall be revived.” Ark. Code Ann. § 16-62-106(a). Taylor’s suit is pending in this court. Thus the plain words of the statute give us authority to act. Dunklin v. Ramsay, 328 Ark. 263, 267, 944 S.W.2d 76, 78 (1997). Two venerable precedents, moreover, deal with this situation and approve appointment of a special administrator by the appellate court in these circumstances. Sneed v. Sneed, 172 Ark. 1135, 1137, 291 S.W. 999, 1000 (1927); Anglin v. Cravens, 16 Ark. 122, 123-24, 88 S.W. 833, 834 (1905) (construing a statutory ancestor of Ark. Code Ann. § 16-62-106).
Another code provision not cited by the parties, Ark. Code Ann. § 16-67-322 (Repl. 2005), has given us some pause. This statute allows substitution on appeal in situations where all the appellants have died and allows compelled substitution where all the appellees have died. This obscure provision is among the statutes about appellate procedure, many of which have been superceded by court rules. Though this provision has been cited in at least one case, we find no cases analyzing or applying it. Compare Passmore, supra. It has been in the books since 1837 and was the law when both Anglin and Sneed were decided. Those cases do not mention it. And both of those cases were multi-party appeals where only one among the several appellants and appellees died.
For several reasons, we choose to follow Anglin and Sneed and hold that § 16-67-322 does not apply. First, this statute is limited by its terms to those situations where all the parties on one side of the v. have passed away while the case is pending in the appellate court. Those are not our facts. Second, the statute does not purport to limit party substitutions to only those situations. The authority conferred by the special-administrator statute, Ark. Code Ann. § 16-62-106(a), is broader than the authority of this section. And we must harmonize the two statutes if possible to avoid a conflict. Jester v. State, 367 Ark. 249, 256, 239 S.W.3d 484, 490 (2006). Third, in appellee-death situations § 16-67-322 authorizes ‘‘compell[ing]” the decedent’s executors or administrators to become parties to the appeal. We need not invoke any such authority. Ms. Landherr has consented to stand in place of Dr. Landherr.
We therefore grant Taylor’s motion. We hereby appoint Patsi Landherr as the Special Administratrix of the Estate of E. John Landherr, M.D., for purposes of defending this case only, revive this case, and substitute the Special Administratrix in Dr. Land-herr’s stead as one of the appellees. Now we proceed to the merits of this appeal.
II.
Under the statute, Taylor had to support her medical-malpractice claims against Dr. Landherr with expert testimony unless his alleged negligence was a matter within the common knowledge of the jurors. Ark. Code Ann. § 16-114-206 (Repl. 1987); Haase v. Starnes, 323 Ark. 263, 268-69, 915 S.W.2d 675, 677-78 (1996). Unlike claims that a doctor failed to sterilize an instrument or left a foreign object inside the patient, Taylor’s allegations against her doctor were not matters of common knowledge. Skaggs v. Johnson, 323 Ark. 320, 325-26, 915 S.W.2d 253, 256 (1996); Lanier v. Trammell, 207 Ark. 372, 377-86, 180 S.W.2d 818, 821-25 (1944). She alleged that Dr. Landherr failed to give her the information that she needed to make an informed decision to undergo the surgery; failed to get her informed consent; discharged her prematurely and then failed to provide adequate follow-up care; failed to properly diagnose and treat her infection and request an infectious disease consult; and failed to dictate timely reports.
A jury would need expert testimony to evaluate all of Taylor’s claims. Brumley v. Naples, 320 Ark. 310, 318, 896 S.W.2d 860, 865 (1995); Skaggs, supra. Absent this kind of testimony supporting her allegations, she had no proof of the standard of care, deviation, or proximate cause — all essential elements of her claims. Faced with these evidentiary gaps, the circuit court correctly granted Dr. Landherr judgment as a matter of law. Hamilton v. Allen, 100 Ark. App. 240, 245-49, 267 S.W.3d 627, 631-34 (2007); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 106, 759 S.W.2d 553, 554 (1988).
Taylor’s allegations against Sparks Medical Center also had to be supported by expert testimony. In her complaint, Taylor alleged that Sparks Medical Center failed to use ordinary care to determine her physical condition and to furnish her with the care and attention reasonably required by it. Further, she alleged that the hospital failed to monitor and supervise Dr. Landherr as he prepared his operative and discharge summaries. The jury would need to hear from a witness with specialized knowledge before it could determine the level of record-keeping oversight required in a hospital setting. The care reasonably required by her staph infection and wound complications are not within the common knowledge of most jurors either. Skaggs, supra. Taylor thus needed an expert to support her claims against the hospital, and it too was entitled to judgment as a matter of law because she offered no such proof. Hamilton, supra.
Taylor bases her negligence claims against the Foundation on a respondeat superior theory. She made no specific allegations against the Foundation, but asserted that Dr. Landherr and the other doctors were at all times acting in the scope of their authority as agents of the Foundation.
The Foundation was likewise entitled to summary judgment. It was undisputed that the Foundation was not incorporated until after the alleged malpractice occurred. Contrary to the circuit court’s ruling, this fact is not dispositive. Taylor could have sued the Foundation as an unincorporated nonprofit association under Ark. Code Ann. § 4-28-506 (Repl. 2001). But she presented no evidence that the Foundation existed as an entity at all when her surgery occurred in 1999. Moreover, the Foundation’s liability was based solely on Landherr’s and the other employees’ acts and omissions. Because Taylor’s claims against those defendants failed as a matter of law, her claims against the Foundation did too. National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 58-59, 800 S.W.2d 694, 697 (1990).
Affirmed.
Robbins and Griffen, JJ., agree. | [
-48,
108,
-55,
28,
24,
35,
-86,
34,
81,
-38,
-9,
19,
-83,
-39,
9,
47,
97,
61,
65,
119,
-41,
55,
23,
-96,
-13,
-5,
90,
71,
-95,
78,
-10,
-35,
77,
124,
2,
-43,
-26,
10,
-55,
80,
-124,
-122,
11,
-23,
-39,
-48,
56,
101,
86,
23,
116,
46,
-96,
45,
60,
-25,
104,
44,
107,
-67,
80,
-80,
-39,
5,
93,
21,
-128,
4,
-104,
75,
90,
58,
-112,
-67,
24,
-84,
82,
-74,
-126,
117,
115,
-83,
4,
102,
99,
17,
13,
-3,
112,
-72,
15,
94,
31,
-89,
-104,
8,
-46,
15,
-74,
61,
121,
76,
6,
-4,
-28,
-41,
93,
44,
37,
-114,
-44,
-95,
-81,
-32,
-100,
-64,
-9,
31,
117,
117,
-51,
-30,
92,
71,
59,
-65,
88,
-78
] |
David M. Glover, Judge.
This case, involving a thirteen-year-old child, represents the latest battle in a long court war between the parents following the entry of the divorce decree on September 17, 1993. Their daughter had been born only a few months earlier, on May 21, 1993. Primary custody of the child was awarded to the mother, appellee Kimberly Williams Ramsey. In this latest chapter of the couple’s history of prolonged acrimony, appellee filed a petition/amended petitions for contempt, which included a request for modification of appellant Walter John Williams’s visitation. The first petition in this regard was filed on November 1, 2005, and the last amended petition was filed on December 29, 2005. The hearing on the petitions began on June 20, 2006, and continued on June 28, 2006. The court’s order was entered on August 7, 2006, finding that appellant was in contempt of prior court orders and also that appellant’s visitation should be reduced to one Saturday a month, with summer visitation eliminated. This appeal followed. We affirm the trial court’s decision with respect to contempt, but reverse and remand on the reduction in visitation.
Visitation Reduction
For his first point of appeal, appellant contends that the trial court erred in reducing his visitation with his child, particularly in light of Dr. Martin Faitak’s testimony that a reduction or change in visitation would not be beneficial to the child. We agree.
In Sharp v. Keeler, 99 Ark. App. 42, 56-57, 256 S.W.3d 528, 538 (2007), this court set forth the standard of review concerning modifications to visitation:
In reviewing domestic-relations cases, this court considers the evidence de novo, but will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. It is well settled that the trial court maintains continuing jurisdiction over visitation and may modify or vacate such orders at any time on a change of circumstances or upon knowledge of facts not known at the time of the initial order. It is also well settled under Arkansas law that reversal is warranted where a trial court modifies visitation where no material change in circumstances warrants such a change. While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children, and to discourage repeated litigation of the same issues. The party seeking a change in visitation has the burden below to show a material change in circumstances warranting the change in visitation. The main consideration in making judicial determinations concerning visitation is the best interest of the child. Important factors to be considered in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. The fixing of visitation rights is a matter that lies within the sound discretion of the trial court.
As we often have repeated, the trial judge is the person in the best position to observe the parties and evaluate the witnesses, their testimony, and the child’s best interest. Id.
Here, the trial court reduced appellant’s visitation from every other weekend to one Saturday a month, with summer visitation eliminated. In reaching that conclusion, the trial court explained that the rules “that were put in place were not put in place to restrict Mr. Williams as an effort to punish him, but rather to stop a pattern of undermining, alienation, and problems that were being created for this child as a result of the behaviors. This Court has seldom gone as far as I’ve gone in this case. But what little support, what little cooperation I feel like I’ve gotten from Mr. Williams has been, primarily, such as the counseling efforts he made, window dressing.”
In the August 7, 2006 order, the trial court found, inter alia, “that the defendant has undermined the relationship of the minor child and the plaintiff by calling his wife ‘Mommy’ to the minor child and calling the plaintiff ‘Kim’ to her. The defendant has undermined the minor child’s relationship with her therapist, Dr. Martin Faitek. Further, he has undermined the minor child’s acceptance of taking needed medication.” Summarizing the order, the following items were of concern to the trial court: 1) that appellant only now agrees to get counseling and make the child take her medication, which had been previously ordered; 2) that appellant continues to believe that it is best for the child to live with him and call his wife “Mommy”; 3) that appellant has engaged in a consistent pattern of behavior violating the court’s orders; 4) that because of appellant’s actions, the child still holds out hope that she will be allowed to live with him, which destabilizes her home situation; 5) that his actions show a focus on himself rather than the child. In light of the foregoing, the trial court determined that a material change of circumstances had occurred and that it was in the child’s best interest to modify visitation.
It seems clear from the record of this case that appellant has effectively been a troublemaker concerning the interrelationships among himself, the child, and appellee. It is difficult under such circumstances to segregate conduct that establishes contempt from conduct that justifies a change in custody or visitation. In Sharp v. Keeler, 99 Ark. App. at 56, 256 S.W.3d at 538, which involved a change of custody, supervised visitation, and contempt, we explained:
On this point, the dissent argues that this case was one of contempt, not change of custody. It is not either/or; it is both. We cannot ignore the fact that the trial court did hold Sharp in contempt on two separate bases. The record reflects that the court specifically noted that if it thought placing Sharp in jail for several days would cure the problem, then it would indeed simply be a contempt issue, but that this was in fact more.
(Emphasis added.) In Sharp, the offending parent’s conduct was described as rising to the level of harassment and torment. We affirmed the change in custody, which was based on the trial court’s determination that the mother acted in ways that were detrimental to the child and that parental alienation on her part constituted a material change of circumstances that warranted a change of custody. We reversed the trial court, however, and remanded on the issue of the change to supervised visitation, explaining:
In short, we find that there was no evidence to support the trial court’s decision that Sharp should only receive four hours of supervised visitation per week, and we hold that that decision was clearly against the preponderance of the evidence. We direct that the trial court award Sharp the same unsupervised visitation that Keeler enjoyed prior to the change of custody. . . .
99 Ark. App. at 58, 256 S.W.3d at 539.
Here, it is perfectly understandable that the trial court has grown frustrated and weary of dealing with a father who appears to put himself above the best interests of his child and who seems determined to act like a child himself in dealing with his own child and his ex-wife. However, even recognizing the father’s bad conduct, we cannot overlook the evidence that was before the trial court, and we have concluded that it does not rise to the level that would constitute a change of circumstances, especially in light of the fact that Dr. Faitak testified that a reduction in visitation would not be beneficial to the child. We, therefore, reverse the trial court’s decision to reduce visitation and order the trial court to reinstate the prior visitation schedule.
Contempt
For his remaining issue, appellant contends that there was insufficient evidence presented to show that he willfully and intentionally violated the court’s previous orders sufficient to be held in contempt and placed in jail. We disagree.
As our supreme court explained in Arkansas Department of Health & Human Services v. Briley, 366 Ark. 496, 500, 237 S.W.3d 7, 9-10 (2006):
We begin by distinguishing civil and criminal contempt:
Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. This court has often noted that the line between civil and criminal contempt may blur at times. Our Court of Appeals has given a concise description of the difference between civil and criminal contempt. (“Criminal contempt punishes while civil contempt coerces.”) In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged.
(Citations omitted.)
Here, both types of contempt were imposed by the trial court. The trial court incarcerated appellant for ten days, which commenced immediately for calling his wife “Mommy” and for failing to give the child her medication. Furthermore, the trial court also ordered appellant to remain in jail after his ten-day incarceration until he paid $1500 in previously ordered attorney fees. The initial ten-day period of incarceration falls under the category of criminal contempt because it carried an unconditional penalty, i.e., it could not be purged. The period of incarceration that followed falls within the category of civil contempt because it was designed to coerce appellant to pay the monies for attorney’s fees that he had been previously ordered to pay. He was able to free himself by complying. Appellant challenges only the initial ten-day period of incarceration.
The standard of review of a case of criminal contempt is well-settled: an appellate court views the record in a light most favorable to the trial judge’s decision and sustains that decision ifit is supported by substantial evidence. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). Where a person is held in contempt for failure or refusal to abide by a judge’s order, the reviewing court will not look behind the order to determine whether it is valid. Id.
In making his argument, appellant focuses his attention upon a July 20, 2005 order that was not actually entered until December 28, 2005, which was after the instant contempt proceedings were initiated. With respect to that order, he contends that “the order was not in writing for the appellant to refer to in order to insure he was in compliance with the ruling of the Court.” He then proceeds to go through this order and explain why he was not in contempt of it. What he neglects to mention, however, and does not include in his addendum, is an order that was entered on May 12, 2005.
In the May 12, 2005 order, the trial court provided that both parties were to give the child her medication as prescribed and that appellant was to refer to appellee as “Mommy,” and not to refer to the step-mother as “Mommy.” In its August 7, 2006 order finding appellant in contempt, the trial court specifically found that appellant had violated the court’s order concern ing reference to his wife as “Mommy” to the minor child and failing to give the minor child her medication when she was with him on visitation. Viewing the record in a light most favorable to the trial judge’s decision, we conclude that it is supported by substantial evidence. For example, appellee testified that in November 2005, appellant came to her door to return the child after a visit, and that in front of her and the child, appellant told the child that he would try to talk “Mommy,” referring to the step-mother, into getting leather seats for the car they were going to buy. Likewise, appellant’s explanation for not requiring the child to take her medication was, in part, “I’ve seen her take it sometimes. Sometimes, I’ve turned my back and done something else. I’m not going to say that every single time I’ve watched her put the medicine in her mouth.” The trial court was in the best position to judge the credibility of these witnesses, and in such matters we defer to the trial court.
Reversed in part and affirmed in part.
Heffley, J., agrees.
Baker, J., concurs. | [
-80,
-24,
-43,
92,
107,
33,
74,
-108,
82,
-53,
103,
-45,
-21,
98,
84,
105,
59,
15,
81,
105,
-47,
-73,
70,
64,
114,
-13,
-79,
87,
-1,
121,
-26,
-42,
-38,
96,
-54,
85,
64,
-54,
-49,
-44,
-58,
2,
43,
100,
64,
-126,
48,
43,
26,
15,
17,
-65,
-29,
47,
60,
-34,
40,
108,
-33,
-68,
-40,
65,
-118,
6,
95,
38,
-77,
-76,
18,
5,
88,
61,
-100,
48,
8,
-20,
115,
-92,
-126,
100,
109,
-103,
40,
112,
98,
1,
13,
-9,
56,
-120,
102,
120,
-115,
-89,
-101,
121,
75,
76,
-66,
-78,
100,
-44,
-102,
-2,
98,
5,
22,
100,
10,
-50,
18,
-95,
-116,
17,
-36,
51,
-29,
103,
112,
85,
-49,
-30,
117,
-62,
19,
-45,
-58,
-77
] |
Brian S. Miller, Judge.
Appellant Garland Phillips appeals
the January 16, 2007, revocation of his suspended imposition of sentence by the Crawford County Circuit Court. Phillips argues that the trial court erred when it refused to consider whether his failure to pay fines and restitution was “inexcusable.” We agree and reverse and remand for further proceedings.
On September 20, 2005, Phillips pled guilty to one count of overdraft in case number CR 04-444-2. His sentence was suspended based on the following terms and conditions: that he pay $911.74 restitution at the rate of fifty dollars per month beginning on October 10, 2005; that, upon completing his restitution payments, he pay a $1250 fine and $150 in court costs at the rate of fifty dollars per month; that he provide a DNA sample; and that he pay a DNA fee of $250.
On February 16, 2006, Phillips pled guilty to two counts of battery in the second degree in case number CR 05-148-2. His sentence was suspended based on the following terms and conditions: that he pay a $750 fine and $150 in court costs at the rate of twenty-five dollars per month, beginning on March 6, 2006; that he provide a DNA sample; and that he pay a DNA fee of $250. The $250 DNA fee was later waived by court order.
The State petitioned to revoke Phillips’s suspended imposition on May 22, 2006, alleging that Phillips violated the conditions of his suspended sentences by failing to pay fines, costs and restitution, and by failing to submit a DNA sample. At the December 12, 2006 revocation hearing, Janis Joslin, the Crawford County victim’s witness coordinator, testified that Phillips had made no payments in CR 05-148-2 and only one payment in CR 04-444-2. Payment ledgers supporting this testimony were introduced into evidence without objection. Joslin also testified that Phillips had failed to report to the sheriff s office to submit to DNA testing.
Phillips testified that he had chronic obstructive pulmonary disease and his only income was the $660 per month that he received in disability payments; that he paid $250 per month in rent; that his electric bill was approximately $100 per month; and that he paid between $43 and $63 per month for medication. He also stated that, during the period at issue, he had paid off fines in Lonoke and Waldron and was currently paying fines in Alma at the rate of $100 per month. Phillips further testified that “I’m paying what I can. I’m doing the best I can. I’m not trying to not pay you. I just don’t have the money to pay you.”
At the close of the evidence, defense counsel argued that the court was required to consider Phillips’s inability to pay. The trial court continued the case for approximately one month. When the case was reconvened, the court found that the State met its burden by showing that Phillips failed to pay his fines and costs and it held that it was not required to consider whether Phillips was unable to pay the fines and costs. Specifically, the court held that:
You were arguing that well he’s got some circumstances that keep him from paying, you know, prohibiting him from paying and it’s not willful then that may play into whether it’s a contempt... But it appears to me if you enter a plea agreement and you say you will pay, and you don’t pay as agreed then you violated the terms of that agreement. . .
The court ruled that Phillips violated his suspended sentence and sentenced Phillips to two years in prison with an additional four years suspended in each case to run concurrently. The judgment and commitment order was entered on January 26, 2007. This appeal followed.
A trial court may revoke a defendant’s suspension at any time prior to the expiration of the period of suspension if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. Ark. Code Ann. § 5-4-309(d) (Repl. 2006); Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988) (emphasis added). This court will not reverse the trial court’s decision to revoke unless it is clearly against the preponderance of the evidence. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superior position. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). The State need only show that the appellant committed one violation in order to sustain a revocation. Id.
Where the alleged violation is a failure to make payments as ordered, the State has the burden of proving by a preponderance of the evidence that the failure to pay was inexcusable. Reese, supra (emphasis added). Once the State has introduced evidence of non-payment, the burden shifts to the defendant to offer some reasonable excuse for his failure to pay. Id. Arkansas Code Annotated section 5-4-205 (f)(3) (Repl. 2006) sets forth several factors to be considered by the trial court, including the defendant’s employment status, earning ability, financial resources, the willfulness of the defendant’s failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay.
The trial court erred in failing to consider whether Phillips’s failure to pay was excusable. Although the State met its burden of showing that Phillips failed to pay his restitution, fines, and costs, there was evidence showing that Phillips had only $60 left after monthly expenses. This was sufficient evidence to require the court to consider whether Phillips’s failure to pay was excusable. Therefore, we reverse and remand, and instruct the trial court to make findings as to whether Phillips’s failure to pay was excusable.
The trial court did not rule on the State’s argument that Phillips violated his probation by failing to submit a DNA sample. Therefore, we do not address that issue. It may, however, be addressed by the court on remand.
Reversed and remanded.
Hart and Heffley, JJ., agree. | [
-48,
-24,
-16,
-36,
61,
-127,
-101,
2,
83,
-93,
-73,
87,
47,
118,
4,
107,
-29,
125,
96,
124,
67,
-78,
39,
99,
-22,
-69,
-7,
87,
-13,
79,
-20,
-43,
13,
114,
-62,
-99,
36,
0,
-11,
-44,
-122,
2,
-87,
-63,
83,
-61,
53,
41,
39,
11,
49,
-113,
-81,
46,
48,
-18,
73,
44,
89,
-81,
64,
-22,
-5,
23,
-1,
21,
-95,
21,
-102,
6,
88,
42,
-104,
61,
0,
-24,
115,
22,
-126,
84,
73,
-101,
44,
32,
98,
17,
93,
-35,
-4,
-71,
63,
-34,
-103,
-89,
-40,
88,
67,
13,
-74,
28,
78,
22,
14,
-4,
118,
-124,
21,
-84,
7,
-50,
-100,
-79,
14,
-12,
-122,
83,
-17,
-95,
48,
81,
-49,
-30,
92,
71,
123,
-37,
126,
-77
] |
Sarah Heffley, Judge.
Swifton Public Schools and Risk Management Insurance, appeal from a decision by the Workers’ Compensation Commission (Commission) that affirmed the Administrative Law Judge’s (ALJ) finding that appellee, Edith Shields, sustained a compensable injury on August 14, 2003, and was entitled to temporary total disability benefits from January 27, 2004 through August 2004. Appellants also appeal the Commission’s finding that appellee provided adequate notice of her injury to her employer. We affirm the decision of the Commission.
Appellee is a public school teacher who was injured on August 14, 2003, while preparing her classroom for the new school year. According to appellee, who had been previously diagnosed with osteoarthritis in both knees, she slipped on a piece of cardboard, fell forward, and landed on her right knee. Appellee was able to get up after a few minutes with the assistance of the custodian, who was in the room at the time of the fall. Appellee reported the injury to the principal of the school, Larry Lee, approximately an hour and a half later, but at that time she thought her knee was just badly bruised and that it would get better.
After several weeks with continued pain and swelling, however, appellee sought medical treatment with her own physician and eventually was diagnosed with synovitis in her right knee. An MRI performed on November 2, 2003, showed joint effusion in her right knee, and appellee underwent arthroscopic surgery on November 21, 2003. Appellee received no benefit from this surgery, and on February 2, 2004, she underwent a total right knee arthroplasty. Appellee was cleared to return to work in August 2004, and she is now employed with the Leachville School District.
On July 27, 2004, appellee signed a Form AR-N, Employee’s Notice of Injury. Appellee contended that she had sustained a compensable injury and was entitled to medical care and temporary total disability. In response, appellants asserted that appellee had not suffered a compensable injury, that appellee’s medical treatment was associated with her pre-existing condition, and that they were not liable for benefits and expenses incurred before the receipt of actual notice of the injury, which was not given until July 27, 2004. A hearing was held on March 3, 2006, and the ALJ held that appellee had sustained a compensable injury, specifically an aggravation to her pre-existing osteoarthritis; she was temporarily totally disabled from January 27, 2004, through August 2004; and appellants were responsible for all reasonable hospital and medical expenses. The ALJ also found that appellee had informed her supervisor, Larry Lee, of the injury on the date of the occurrence, thus satisfying the notice requirement under Ark. Code Ann. § 11-9-701 (Repl. 2002).
Appellants appealed to the Commission, which affirmed the ALJ’s decision. In its decision, the Commission specifically noted that although appellee suffered from a pre-existing arthritic condition in her knees, the medical evidence established post-injury findings of synovitis and effusion, which were objective medical findings that were not present before appellee’s workplace injury. The Commission also reiterated that appellee’s employer had knowledge of appellee’s injury on August 14, 2003, and appellee was therefore not barred from receiving workers’ compensation before the time she signed the July 27, 2004 Form AR-N. Appellants now bring their appeal of the Commission’s decision before this court.
In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Searcy Indus. Laundry v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. After reviewing the Commission’s findings of fact, conclusions of law, and opinion, we hold that there is substantial evidence to support the Commission’s decision that appellee sustained a compensable injury on August 14, 2003.
We also agree with the Commission’s determination that because appellee’s employer was informed of the injury on the date it occurred, the notice requirement under Ark. Code Ann. § 11-9-701 was fulfilled, regardless of when the Form AR-N was filed. Section 11-9-701 provides, in pertinent part:
(a)(1) Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Workers’ Compensation Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee’s report of injury.
(2) All reporting procedures specified by the employer must be reasonable and shall afford each employee reasonable notice of the reporting requirements.
(b)(1) Failure to give the notice shall not bar any claim:
(A) If the employer had knowledge of the injury or death;
(B) If the employee had no knowledge that the condition or disease arose out of and in the course of the employment; or
(C) If the commission excuses the failure on the grounds that for some satisfactory reason the notice could not be given.
Appellee’s testimony at the hearing, which the Commission found credible, established that, not only did she inform her employer of the injury on the date it occurred, but also that her employer was aware she was undergoing medical treatment for her injury because she missed work for doctor’s appointments and the two surgeries, and she informed her employer of her reason for missing work. Accordingly, we affirm the Commission’s decision.
Affirmed.
Hart and Miller, JJ., agree. | [
-112,
73,
-43,
-84,
24,
99,
58,
-90,
115,
-105,
37,
83,
-65,
-16,
29,
127,
-31,
111,
-64,
111,
-45,
51,
51,
11,
-74,
-9,
-29,
71,
-77,
102,
-16,
-12,
93,
48,
-118,
85,
-58,
74,
-55,
16,
-126,
-122,
-86,
-55,
89,
98,
56,
106,
56,
13,
48,
-54,
107,
44,
24,
-49,
40,
44,
90,
37,
-126,
-31,
-127,
5,
-1,
7,
-77,
36,
30,
15,
-38,
42,
-104,
49,
8,
-88,
18,
-74,
-46,
52,
59,
-71,
8,
99,
99,
49,
-107,
-75,
-4,
-72,
62,
90,
61,
-92,
-109,
57,
123,
14,
-107,
-99,
-36,
68,
23,
124,
-82,
77,
30,
44,
-125,
-122,
-124,
-79,
-33,
32,
28,
-89,
-25,
47,
51,
37,
-50,
-74,
93,
-128,
51,
27,
-6,
-86
] |
Sam Bird, Judge.
Appellant Angela Floyd appeals from the circuit court’s order dismissing her complaint against Dr. Samuel Koenig III for failure to file her complaint within the applicable statute of limitations. Although appellant responded to Dr. Koenig’s statute-of-limitations defense by claiming that the statute of limitations was tolled by the doctrine of fraudulent concealment, the circuit court rejected this argument, holding that appellant did not set out allegations of fraud in her complaint. Appellant argues on appeal that the circuit court erred in holding that Rule 9(b) of the Arkansas Rules of Civil Procedure, which requires that fraud be pleaded with particularity, applies to the doctrine of fraudulent concealment. Moreover, she claims that she pleaded sufficient facts in her complaint to establish fraudulent concealment and, therefore, that the statute of limitations in this case was tolled. We reverse the circuit court’s order dismissing appellant’s complaint and remand for further proceedings.
In cases where the appellant claims that the trial court erred in granting a motion to dismiss, appellate courts review the trial court’s ruling using a de novo standard of review. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). We will not reverse a finding of fact unless it is clearly erroneous. Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). We treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Biedenham v. Thicksten, 361 Ark. 438, 441, 206 S.W.3d 837, 840 (2005). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in plaintiffs favor. Id.
According to appellant’s complaint, in the late summer of 1987, appellant, then twenty-three years old and unmarried, became pregnant with her second child. Dr. Koenig, who was her family physician and the primary-care provider for her one-year-old son, provided prenatal care. During one of appellant’s prenatal visits, Dr. Koenig suggested that appellant consider giving up her second child for adoption, said that he knew a family who would like to adopt, and told her that he could take care of all of the arrangements for the adoption. She agreed to the adoption, which was to be done anonymously. Appellant moved from Fort Smith to Tulsa, Oklahoma, in January 1988 in order to keep her pregnancy a secret from all but her parents and her aunt. Appellant gave birth to a baby girl on April 12, 1988, and executed the consent to adoption on April 13, 1988.
When appellant returned to Fort Smith after the birth, Dr. Koenig continued to treat appellant and her son. Appellant got married on September 28, 2003, and gave birth to her third child, a daughter, on February 20, 2004. Dr. Koenig assisted in the birth of this child. At this time, neither appellant’s husband nor firstborn child knew that appellant had given up the second child for adoption.
On March 27, 2006, appellant was contacted by Greg Whitsett, who, along with his wife Donna, had adopted appellant’s daughter, named Rainy, in 1988. Appellant learned that, sometime in 1997, Dr. Koenig had released appellant’s medical records, family history, and other identifying information, including her married name, address, date of birth, and social security number to Mr. Whitsett. The information released included medical records available at the time of Rainy’s birth as well as information regarding appellant’s and her son’s care through 2006. Mr. Whit-sett instructed appellant to tell Rainy that she did not want a relationship with her. When appellant hesitated to follow Mr. Whitsett’s instructions, Mr. Whitsett threatened to reveal the facts of the adoption to appellant’s husband and son. Thereafter, appellant told her husband and son the facts of the adoption.
Appellant filed a complaint against Dr. Koenig and Albert S. Koenig III, P.A., d/b/a Family Medical Center (hereinafter sometimes referred to together as “Dr. Koenig”) on September 25, 2006, alleging invasion of privacy, public disclosure of private facts, negligence, and breach of fiduciary duty. Dr. Koenig moved to dismiss on the grounds that appellant’s claims were barred by the three-year statute of limitations. Appellant responded, asserting that the statute of limitations was tolled because Dr. Koenig’s failure to reveal his wrongful disclosure and the manner in which this disclosure was made amounted to fraudulent concealment. She argued that the statute was tolled until she discovered that Dr. Koenig had revealed this confidential information to Mr. Whitsett without her permission. The court granted the motion and entered an order dismissing the case for failure to file the complaint within the applicable statute of limitations. The court stated in a letter that appellant’s complaint did not set out allegations of fraud or facts that would support an allegation of fraudulent conduct on the part of the defendants.
Appellant’s first point on appeal is that the circuit court erred in holding that she was required to plead fraud with particularity under Ark. R. Civ. P. 9(b). She argues that the doctrine of fraudulent concealment is not a cause of action but merely a response to the affirmative defense of statute of limitations. She asserts that, as a general rule, plaintiffs have no duty to anticipate affirmative defenses. While appellant is correct as a general matter and appellant was not required to allege fraud or fraudulent concealment in her complaint, Arkansas law does require appellant’s complaint to contain facts sufficient to support the application of fraudulent concealment to toll the statute of limitations. See Jones v. Central Ark. Radiation Therapy Inst., Inc., 270 Ark. 988, 607 S.W.2d 334 (1980); see also Federal Deposit Ins. Corp. v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).
For her second point on appeal, appellant contends that she did plead facts sufficient to support the application of fraudulent concealment and that the statute of limitations was tolled in this case. The parties agree that the statute of limitations for appellant’s causes of action is three years. See O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997) (noting the longstanding Arkansas caselaw that a three-year statute of limitations applies to all tort actions not otherwise limited by law). The statute of limitations generally begins to run when the allegedly wrongful acts occurred — in this case, in 1997 when Dr. Koenig allegedly informed Mr. Whitsett about appellant’s identity and medical history. Courtney v. First Nat’l Bank, 300 Ark. 498, 501, 780 S.W.2d 536, 538 (1989). However, fraud suspends the running of the statute of limitations until the party having the cause of action discovers the fraud, or should have discovered it by the exercise of reasonable diligence. Delanno, Inc. v. Peace, 366 Ark. 542, 545, 237 S.W.3d 81, 84 (2006). In order to toll the statute of limitations, the fraud perpetrated must be concealed. Id. The general rule of fraudulent concealment requires “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that conceals itself.” Id. (quoting Sheton v. Fiser, 340 Ark. 89, 96, 8 S.W.3d 557, 562 (2000)).
■ However, in some situations, the law imposes upon a party a duty to speak rather than to remain silent in respect of certain facts within his knowledge, and the failure to speak is the equivalent of fraudulent concealment and amounts to fraud just as much as an affirmative falsehood. Camp v. First Fed. Savings & Loan, 12 Ark. App. 150, 154, 671 S.W.2d 213, 215 (1984); see also Tech. Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 245 S.W.3d 687 (2006). The Arkansas Supreme Court has held that this rule is applicable under “special circumstances . . . such as a confidential relationship.” Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 397, 653 S.W.2d 128, 134 (1983). It is this theory of fraudulent concealment that appellant argues applies in this case.
Appellant contends that her complaint alleges that she and Dr. Koenig had a special, confidential relationship; that Dr. Koenig wrongfully disclosed her medical records, her son’s medical records, and her personal, identifying information to the adoptive parents in 1997; and that he had a duty to tell her that he had disclosed this information. She argues that Dr. Koenig’s failure to speak is the equivalent of fraudulent concealment and tolled the statute of limitations until March 27, 2006, when Mr. Whitsett contacted her.
The question before us is whether a duty to speak arose in this case. A duty to speak arises only when under “special circumstances . .. where there is a confidential relationship.” Id. Whether a duty to speak exists is determinable “by reference to all the circumstances of the case, and by comparing the facts not disclosed with the object and end. sought by the contracting parties. The difficulty is not so much in stating the general principles of law, which are fairly well understood, as in applying the law to particular groups of facts.” Camp, 12 Ark. App. at 155, 671 S.W.2d at 216.
In Camp, the appellant purchased a newly constructed house from a builder who had borrowed construction money from First Federal Savings and Loan. Unbeknownst to the appellant, the house was in a flood plain. The appellant argued that First Federal owed her a duty to disclose that the property she was purchasing was in a flood area. The bank argued that it had no confidential relationship with the appellant because it had merely loaned construction money to the builder. We reversed the directed verdict on behalf of the bank and held that a jury should have had the opportunity to consider whether a confidential or other similar relationship existed between appellant and First Federal, thereby imposing upon First Federal a duty to speak.
In Howard v. Northwest Arkansas Surgical Clinic, P.A., 324 Ark. 375, 921 S.W.2d 596 (1996), the supreme court reversed a summary judgment in a medical-malpractice case in which a needle was left by the defendant doctor in the plaintiffs breast during a biopsy, holding that there was a genuine issue of material fact as to whether the presence of the needle was fraudulently concealed from her and thus the statute of limitations tolled. The court noted that “[w]e have a defendant who had an obvious professional, positive duty to speak if he knew he had negligently left a foreign object in his patient, we have evidence that he was informed that the foreign object remained in the patient, and we have a plaintiff who could not, if the facts were as stated, have detected the fraud.” 324 Ark. at 383, 596 S.W.2d at 600.
In Roberts v. Francis, 128 F.3d 647 (8th Cir. 1997), the court held that the statute of limitations was tolled where the doctor did not disclose to the plaintiff that, during bladder-removal surgery, he had also removed her only remaining ovary even though the plaintiff was not informed, either before or after the surgery, that removal of her ovary might be necessary. The court recognized that, under Arkansas law, a party may have an obligation to speak rather than remain silent, when a failure to speak is the equivalent of fraudulent concealment. The court noted the special nature of the doctor-patient relationship and held that the doctor was under a duty to inform the plaintiff that he removed her ovary, reasoning that “where the physician maintains primary control over the relevant information and the plaintiff is unaware of the alleged wrong, the physician has an affirmative duty of disclosure.” Id. at 650.
In this case, viewing the facts asserted in the complaint in the light most favorable to appellant, Dr. Koenig was appellant’s primary-care physician when she got pregnant with Rainy; he was also the primary-care provider for her one-year-old son; he provided prenatal care during appellant’s pregnancy; he advised her to give the child up for adoption; and he arranged for an anonymous adoption after Rainy’s birth. Moreover, Dr. Koenig continued to provide medical care for appellant and her son for over fifteen years after the adoption. In reviewing these allega tions, we recognize that the issue of fraudulent concealment is normally a question of fact that is not suited for dismissal by summary judgment or, as here, by a motion to dismiss. See, e.g., Tech. Partners, Inc., 97 Ark. App. at 237, 245 S.W.3d at 694. Our review of these allegations and the relevant law convinces us that appellant has alleged facts sufficient to support the application of fraudulent concealment. Therefore, the circuit court erred in granting the motion to dismiss in favor of Dr. Koenig.
Reversed and remanded.
Glover and Vaught, JJ., agree. | [
48,
-17,
108,
124,
44,
-95,
98,
14,
82,
-117,
63,
115,
-17,
-62,
-100,
125,
-21,
45,
97,
97,
-46,
51,
71,
32,
114,
-74,
-40,
-42,
-76,
75,
-28,
-9,
76,
32,
-62,
85,
70,
-56,
-115,
82,
18,
2,
-119,
101,
81,
-64,
32,
-77,
90,
79,
53,
-98,
-29,
-81,
-66,
-58,
40,
8,
-1,
-67,
-64,
-112,
-114,
5,
127,
18,
-77,
39,
-70,
1,
90,
-82,
-104,
-72,
34,
-32,
115,
-74,
2,
116,
107,
-103,
8,
96,
98,
32,
77,
-25,
-71,
-120,
14,
63,
29,
-89,
-102,
64,
75,
15,
-65,
-108,
112,
-108,
6,
-2,
100,
-52,
30,
108,
8,
-114,
-42,
-77,
-113,
112,
-124,
51,
-25,
-93,
16,
81,
-51,
-32,
92,
87,
123,
58,
-34,
-73
] |
John Mauzy Pittman, Chief Judge.
The appellant, Wesley R. McMurray, was charged with committing second-degree battery by causing serious physical injury to a person over sixty years of age in concert with two or more other persons. After a jury trial, he was convicted of that offense and sentenced to four years’ imprisonment. On appeal, he argues that he was denied due process by the trial judge’s allowing the jury to ask a question concerning accomplice liability, and that the trial court abused its discretion by giving accomplice-liability instructions in response to the jury’s question. We affirm.
At trial, there was evidence that the victim was beaten by a group of men. Appellant was not specifically charged as an accomplice. After deliberating some time, however, the jury sent a note to the judge, stating that they believed that appellant was in fact present when the beating occurred and asking to be instructed on accomplice liability. Over appellant’s objection, the trial judge instructed the jury with Arkansas Model Jury Instruction - Criminal (AMCI) 2d 401, defining accomplice liability; and AMCI 2d 404, stating that mere presence, silence, or knowledge of a crime is not, in the absence of a legal duty to act, sufficient to establish accomplice status.
Appellant’s objection at trial was based on lack of notice and his assertions that (1) accomplice liability must be specifically charged; and (2) there was no evidence that he acted in concert with others because the evidence that indisputably shows that he did so was admitted only for the purpose of the enhancement statute, not to show accomplice liability. These arguments are without merit. Appellant was expressly charged with committing battery in concert with two or more other persons. This is sufficient to put appellant on notice that accomplice liability may be an issue, see Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991), and there is no need to expressly charge a defendant as an accomplice to obtain a conviction based on accomplice liability. Id.
Nor do we agree with appellant’s argument that the evidence of concerted action could not properly be considered to find accomplice liability because it was introduced as proof of enhancement. Because appellant, by virtue of the facts alleged in the charging instrument, should have known that accomplice liability was at issue, see Purifoy v. State, supra, he was required under Ark. R. Evid. 105 to request a limiting instruction if he wished to restrict the jury’s consideration of the evidence to enhancement alone. Having failed to do so, he cannot complain on appeal that the evidence should be restricted to the purpose for which he alleges it was admitted, Jackson v. State, 259 Ark. 780, 536 S.W.2d 716 (1976); see Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001); Christian v. State, 54 Ark. App. 191, 925 S.W.2d 428 (1996).
Appellant’s remaining arguments are not properly before us. At trial, appellant made no argument, or mention, of Ark. R. Crim. P. 33.7, which requires instructions to be given upon the jury’s request unless certain factors are present. Nevertheless, Rule 33.7 is central to several of his arguments on appeal and, because the Rule was not raised at trial, those arguments are not preserved for appeal.
We note that the circumstances of the present case are markedly different from those of Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965), which held that the trial court erred in instructing the jury on lesser-included offenses after the jury had been deliberating for over twenty-four hours. First, Rush involved the giving of an instruction permitting the jury to find the defendant guilty of entirely different crimes; here, the instruction concerned the identical offense with which appellant was charged — the law draws no distinction between the criminal liability of a principal and an accomplice. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). Second, the trial judge in Rush gave the lesser-included instructions on his own initiative, whereas the trial judge’s instructions in the present case were given in response to a request from the jury which, under Rule 33.7, must be answered unless certain factors are present. Finally, if we are to resort to the common law, there is much better precedent available than Rush. In Slim and Shorty v. State, 123 Ark. 583, 186 S.W. 308 (1916), the supreme court squarely held that it was within the trial court’s discretion, at the jury’s request after deliberations had begun, to give an instruction on the issue of accessories. Id. at 593. So, even had this argument been preserved — and it has not — it would be unavailing.
Affirmed.
Bird, Vaught, Heffley, and Miller, JJ., agree.
Gladwin, Robbins, Glover, and Marshall, JJ., dissent. | [
80,
-21,
-23,
-68,
72,
96,
58,
-80,
-127,
-109,
102,
83,
109,
-49,
13,
121,
104,
121,
85,
121,
108,
-74,
47,
65,
-94,
-45,
57,
86,
-74,
-54,
-18,
-33,
64,
112,
-54,
85,
102,
11,
-27,
94,
-126,
12,
-72,
96,
-48,
-126,
100,
99,
68,
7,
49,
-98,
-93,
42,
22,
-54,
109,
40,
79,
-73,
-48,
57,
-97,
-91,
111,
16,
-77,
54,
-103,
37,
-16,
10,
-40,
-69,
0,
-24,
50,
-106,
-126,
116,
105,
-101,
12,
96,
98,
1,
-112,
-17,
-67,
-72,
62,
103,
-99,
-121,
-8,
72,
75,
13,
-105,
-73,
115,
85,
-122,
-6,
-11,
29,
56,
108,
3,
-49,
-108,
-79,
77,
114,
22,
-46,
-21,
7,
16,
117,
-52,
-30,
92,
69,
90,
-37,
-98,
-106
] |
Karen R. Baker, Judge.
Appellant William G. Born challenges the trial court’s disposition of real property in a mortgage foreclosure action asserting that the trial court did not have authority to order the defendant in this case to sign a quitclaim deed to the party bringing the foreclosure action and that a trial court does not have authority to order the Clerk of the Court to perform any act that a trial court could not lawfully compel a party to perform. For the reasons stated herein, we reverse and remand.
The order appealed from was entered pursuant to appellant’s failure to ’answer the complaint and the appellees’ motion for default judgment with appellant’s response to that motion. Appel-lees Emmett and Sharon Hodges filed a complaint against Mr. Born on June 6, 2006, and served Mr. Born by a process server on June 7, 2006, at Mr. Born’s place of employment. The complaint alleged that appellant was in default on a contract providing owner financing for the purchase price of real estate owned by appellees as sellers. According to appellees’ reply to Mr. Born’s Response to Motion for Default Judgment, the original complaint in this action was filed in Yell County, but a notice of dismissal was filed and Mr. Born was notified of the dismissal when he was served with notice of the Johnson County filing. The trial court granted appellees’ motion for default judgment, ordered appellant to vacate the premises and execute a quitclaim deed transferring the property to appellees within ten days of the court’s order, and ordered the clerk of the court to issue a proper deed to appellees if appellant had not fully executed the quitclaim deed pursuant to the court’s order.
Appellees argue that we must apply an abuse of discretion standard in reviewing the appropriateness of the default judgment in this case; however, our standard of review depends on the grounds upon which the appellant is claiming that the default judgment should be set aside. Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432, 246 S.W.3d 883 (2007). In cases where the appellant claims that the default judgment is void, the matter is a question of law, which we review de novo and give no deference to the circuit court’s ruling. Id. In all other cases where we review the motion to set aside a default judgment, we do not reverse absent an abuse of discretion. Id. In the case before us, appellant argues that the trial court exceeded its authority and unlawfully ordered appellant to quitclaim his interest in the property. The general rule is that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void. Ivy v. Office of Child Support Enforcement, 99 Ark. App. 341, 260 S.W.3d 328 (2007); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995). In this case, appellant argues that the trial court had no authority to grant the relief entered by the judgment. Accordingly, our review of this matter is de novo.
When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Rules of Civil Procedure, a default judgment may be entered against him. See Ark. R. Civ. P. 55(a). Default judgments are not favorites of the law and should be avoided when possible. B & F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). A default judgment may be a harsh and drastic result affecting the substantial rights of the parties. CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980). Pursuant to Rule 55(c) of the Arkansas Rules of Civil Procedure, a default judgment may be set aside for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment.
In reviewing appellees’ complaint, we note that paragraph one of the complaint identifies appellees as “Grantees” and appellant as “Grantor” and requests the following relief: “WHERE FORE, the Grantors request entry of judgment against the Grantee for the principal amount of the note and mortgage ... as well as costs and all sums the Grantors may be required to expend for additional expenses incurred in this foreclosure proceeding to secure the property. ... If such judgment is not paid or settled in full within the time allowed by this Court, the property should be returned to the Grantors by Warranty Deed executed by Grantor.” The complaint appears to identify the parties rather indiscriminately, interchanging the nominatives. It is not necessary to our disposition of this case to examine the inconsistency in the identities. It is sufficient to recognize that the prayer for relief in the appellees’ complaint acknowledged that the action was a foreclosure proceeding that sought the execution of a warranty deed.
Our foreclosure statutes provide for the sale of the property subject to the mortgage, not the execution of a deed:
(b) In the foreclosure of a mortgage, a sale of the mortgaged property shall be ordered in all cases.
(c) In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.
Ark. Code Ann. § 18-49-103 (Repl. 2003) (emphasis supplied).
Appellant argues that appellees had the right to pursue a judgment for the indebtedness, disregarding their secured interest in the property — essentially, suing only on the note, citing Haney v. Phillips, 72 Ark. App. 202, 35 S.W.3d 373 (2000), or they could proceed in rem having the right to foreclose the mortgage interest and have the court order the public sale of the property. Id. In Haney, this court found that the trial court had erred by applying the election-of-remedies doctrine to preclude a foreclosure. We held that the remedies sought by the holder of the mortgage were not inconsistent. Under the law, he was entitled to pursue either one of them, or both in succession, until the debt was satisfied. Haney, supra.
While appellant’s reliance on Haney may be misplaced, his citation to Arkansas Code Annotated Section 18-49-103(b) and his statement that the trial court had no power or authority, either at law or equity, to seize his full interest and compel him to convey that interest to appellees is well taken. The filing of appellees’ complaint initiated a foreclosure proceeding on an alleged debt asserted to be secured by a mortgage on real property. The complaint requested an order compelling the execution of a deed to satisfy the alleged mortgage. The trial court was without authority to order appellant or the clerk to execute a deed transferring title of the property to satisfy the alleged mortgage. Accordingly, we must reverse and remand for proceedings consistent with this opinion.
For the foregoing reasons, we reverse and remand.
Glover, J., agrees
Heffley, J., concurs.
The copy of the mortgage attached as exhibit “A” to the complaint filed in Johnson County contains a handwritten modification. The word “Johnson” is typed into the blank left open on the form to identify the county in which the real property is located. Johnson has a handwritten line drawn through it with the word “yell” handwritten above. No initials are present by the handwritten modification. The copy of the mortgage has no writing typed or handwritten in the certificate of record space and no marks indicating that the document was filed at the Johnson County courthouse. A handwritten modification is also present on the document entitled “REAL ESTATE PURCHASE MONEY NOTE” attached as exhibit “B” to the complaint which contains a hand-drawn line through “Johns,” leaving the “on” intact, with “yell” handwritten in above the “Johns.” While appellees argue on appeal that no mortgage was ever filed of record, the record contains a file-marked copy of a mortgage with a completed certificate of record from Johnson County with no handwritten modifications. The complaint filed in Johnson County on June 6,2006, states that the real property involved is located in Johnson County. The complaint also states that the attached exhibits of the mortgage and note are true and correct copies of the original documents. Neither party raises arguments regarding these discrepancies. Our disposition of this case does not require us to address any issues arising from those inconsistencies and nothing in this opinion should be deemed to preclude the parties or the trial court from addressing such. | [
-14,
-20,
-47,
44,
10,
96,
50,
-102,
83,
-31,
38,
83,
109,
-62,
4,
111,
-10,
121,
-11,
105,
69,
-77,
7,
96,
-46,
-14,
-47,
85,
-73,
75,
100,
-41,
76,
96,
-54,
-41,
70,
-128,
-123,
84,
-114,
-121,
-104,
100,
-47,
64,
48,
-85,
18,
9,
21,
63,
-13,
46,
59,
-54,
109,
44,
91,
-67,
-39,
-8,
-68,
5,
95,
5,
-79,
37,
-100,
67,
-8,
-22,
-108,
61,
3,
-8,
118,
54,
-110,
84,
67,
31,
41,
118,
114,
0,
108,
-17,
56,
41,
15,
-66,
-115,
-89,
-110,
88,
67,
41,
-74,
-99,
109,
6,
47,
-4,
102,
-124,
92,
-20,
19,
-50,
-42,
-105,
-113,
84,
-120,
11,
-10,
-125,
-76,
113,
-52,
-88,
116,
99,
49,
-117,
-36,
-7
] |
D.p. Marshall Jr., Judge.
This case arises at the three-way intersection of a service problem, the statute of limitations, and the terms of the dismissal. The question presented is whether the circuit court should have dismissed Ngau Van Tu’s lawsuit against his former chiropractor, Dr. Lance Clouse, with prejudice or without prejudice. As Dr. Clouse contends, our review is de novo because this case turns on court rules and precedents about commencement, an issue of law. We conclude that Tu commenced his case by completing timely but defective service of his complaint and summons. As the circuit court ruled, this defect entitled Dr. Clouse to have this case dismissed, but without prejudice to it being refiled by Tu.
I.
One week before the statute of limitations (as extended by a tolling agreement) expired, Tu sued Dr. Clouse. Tu alleged negligent treatment. About two weeks after filing suit, Tu served the complaint and summons but did so imperfectly.
The personal service was defective under Rule of Civil Procedure 4(d)(1). Dr. Clouse was with a patient when the process server came to his office with the suit papers. The server gave the complaint and summons to Dr. Clouse’s wife, who was working there as his office manager. Mrs. Clouse was not her husband’s registered agent to receive process. The process server testified by affidavit, however, that she told him that she was Dr. Clouse’s agent; Mrs. Clouse’s affidavit did not discuss this alleged representation. And the service did not occur at Dr. Clouse’s “dwelling house or usual place of abode,” where we presume that he and Mrs. Clouse live. Ark. R. Civ. P. 4(d)(1).
In due course, Dr. Clouse timely answered the complaint and asserted his defenses including that service was defective. Tu did not attempt to cure this problem by serving the lawsuit again. Several months later Dr. Clouse moved to dismiss. By then, the statute of limitations had expired. Dr. Clouse — relying on precedents exemplified by Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991) — sought a dismissal with prejudice. Because, Dr. Clouse argued, Tu did not complete good service on him within 120 days of filing his complaint, Tu never commenced his case before the statute ran, and his claims were now barred.
The circuit court granted Dr. Clouse’s motion in part. It dismissed the case, but did so without prejudice. This decision triggered our saving statute, Ark. Code Ann. § 16-56-126(a)(l) (Repl. 2005), and began a one-year period in which Tu may refile his case. Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 621-22, 954 S.W.2d 939, 940 (1997). In a salutary step that aids our appellate review, the circuit court explained why it refused to dismiss with prejudice. “The rationale in Forrest City Machine Works, Inc. v. Lyons[,] 315 Ark. 173, 866 S.W.2d 372 (1993) is the reason that I find the case should be dismissed without prejudice.”
Dr. Clouse appeals. He argues that Lyons II and like cases do not control because their rule is triggered only by completed service. Here, Dr. Clouse continues, Tu did not complete personal service on him because Tu served only Mrs. Clouse. Therefore, he argues, the Green line of precedents applies; Tu never commenced his lawsuit and his claims are now barred by limitations. Tu defends the decision below by arguing that Lyons II governs.
II.
The circuit court decided this issue correctly. The Green line of precedents does not apply. In those cases, the plaintiff made no completed service at all within the time prescribed by Rule 4. E.g., Posey v. St. Bernard’s Healthcare, Inc., 365 Ark. 154, 162, 226 S.W.3d 757, 763 (2006) (plaintiffs “admitted on the record that they never attempted to serve [defendant] with the amended complaint”); Southeast Foods, Inc. v. Keener, 335 Ark. 209, 215, 979 S.W.2d 885, 888 (1998) (no service completed until after the 120-day period expired); Bodiford v. Bess, 330 Ark. 713, 715, 956 S.W.2d 861, 862 (1997) (“service on [defendant] was not obtained”); Sublett v. Hipps, 330 Ark. 58, 62, 952 S.W.2d 140, 142 (1997) (plaintiff “concedes that service was not accomplished on [co-defendant] within 120 days because counsel was under the false impression that [the co-defendant] had died without insurance coverage”); Hicks v. Clark, 316 Ark. 148, 150, 870 S.W.2d 750, 752 (1994) (plaintiff “waited over ten months before completing any service on [defendant]”); Green, 304 Ark. at 485, 488-89, 803 S.W.2d at 537-39 (plaintiff “made no attempt to serve [three defendants]”).
This principle — no completed timely service means no commencement under Rule of Civil Procedure 3 or the saving statute —• is the common denominator in each of Dr. Clouse’s authorities, and in all the authorities that this court has examined, on this issue. The leading commentators put the matter this way: “[I]f no service whatsoever is made within the 120-day period or the extended time period set by the court, the action was never commenced and the statute of limitation continues to run. After expiration of the statute, a dismissal on defendant’s motion is with prejudice.” David Newbern & John J. Watkins: 2 Arkansas Practice Series: Civil Practice and Procedure, § 12:2, at 280 (4th ed. 2006 and Supp. 2007) (footnotes collecting cases omitted).
Timely but defective service is not no service. As the circuit court ruled, Lyons II is directly in point. Here is the supreme court’s holding, which governs this case:
In sum, to toll the limitations period and invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. A court’s later ruling finding that completed service invalid does not disinherit the plaintiff from the benefit of the saving statute.
315 Ark. at 177, 866 S.W.2d at 374.
Consider the facts of the Lyons cases. The deputy sheriff took the complaint and summons to the manager of Forrest City Machine Works. The deputy filed a return stating that he had served the company. The manager, however, later testified by affidavit that the deputy did not leave the suit papers with him. In Lyons I, the supreme court affirmed the circuit court’s decision dismissing the first case for improper service. 301 Ark. at 562-63, 785 S.W.2d at 222. In Lyons II, the supreme court rejected the company’s argument that the improper service did not commence the case and entitle Mr. Lyons to refile it under the saving statute. 315 Ark. at 175-77, 866 S.W.2d at 373-74. The supreme court held that the facts established completed, but improper, service. Lyons II, 315 Ark. at 176, 866 S.W.2d at 374. As Dr. Clouse points out, the supreme court’s decision in Lyons II that service was completed does not square exactly with the facts as recited by Lyons I. But to highlight that looseness does not undermine this settled precedent or the governing rule: timely and completed service later invalidated commences the case.
Tu filed his complaint within the limitations period and completed timely — albeit defective — service of it. Dr. Clouse timely answered, preserved his objection about the defective service, and then moved to dismiss. The circuit court agreed with Dr. Clouse and concluded that the completed service was invalid. That conclusion, however, does not mean that Tu failed to commence his case in a timely fashion under Rule 3 and the saving statute. Lyons II and similar cases hold that he did so.
Lyons II is not a stray precedent. The supreme court, and this court, have recognized and applied it repeatedly. E.g., McCoy v. Montgomery, 370 Ark. 333, 337-39, 259 S.W.3d 430, 433-35 (2007); Posey, 365 Ark. at 165-66, 226 S.W.3d at 765; Long v. Bonds, 89 Ark. App. 111, 113, 200 S.W.3d 922, 923-24 (2005); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 710-11, 120 S.W.3d 525, 530-31 (2003). In each of these cases and others, the appellate court reaffirmed the holding of Lyons II on which the circuit court decided this case.
Dr. Clouse argues that, given the bad service in this case, applying Lyons II here changes the commencement standard from completed service to attempted service. He points out that the Keener case explicitly rejected attempted service as the standard. We acknowledge that some of the precedents speak about attempted service. E.g., Lyons II, 315 Ark. at 177-78, 866 S.W.2d at 375 (Brown, J., concurring); Posey, supra; McCoy, supra. If any attempted service suffices, however, then Tu commenced his case by serving the complaint and summons on Mrs. Clouse. Articulating the legal standard in this way therefore does not help Dr. Clouse end this case now. Attempted service, moreover, is not the standard. Notwithstanding the mention of attempted service in some of the cases, the governing legal principles are clear.
For several reasons, we are not persuaded that this case works any change in the settled law about commencement. The key ingredient is timely completed service that turns out to be defective. First, Keener did reject an attempted-service argument, but Keener is really a no-service case. The plaintiff made no completed service during the 120-day period. She attempted service on the defendant corporation during that period by certified mail, but the letter was returned as “undeliverable.” It was only after the 120-day period expired that she completed service on the Secretary of State. 335 Ark. at 211, 215, 979 S.W.2d at 886, 888. Second, the supreme court’s most recent precedents on point — McCoy and Posey — speak of attempted service as the outer boundary in these cases. This formulation is really just another way of expressing the rule of timely and completed but defective service exemplified by Lyons II. This understanding explains why Justice Brown joined the court’s opinion in Lyons II but also spoke about a timely attempt at service in his concurrence.
Posey, for example, is a no-service case: the plaintiffs never served the co-defendant/appellee Dr. Bolt at all, 365 Ark. at 161-62, 226 S.W.3d at 762-63, and thus the case falls squarely in the Green line. McCoy is almost exactly like Lyons II, but there was one twist: the circuit court upheld the timely but defective service. The plaintiffs nonetheless grew concerned about the adequacy of that service, and nonsuited and refiled their case out of an abundance of caution. On appeal after a judgment in the refiled case, relying on Lyons II the supreme court rejected Dr. McCoy’s limitations argument. 370 Ark. at 337-39, 259 S.W.3d at 433-35. We do not believe that McCoy conflicts with Keener or changed the governing law to an attempted-service rule. Again, service in McCoy was timely completed but defective. Ibid.
The supreme court has never held that any attempt at service, whether completed or not, commences a case. Indeed Keener rejected that standard. And we do not adopt or apply this standard today. Instead, the cases fall in two lines: those in which no timély service was completed, and those in which timely service was completed but done imperfectly. Tu’s case, as the circuit court correctly concluded, is in the second line.
We note one new decision that appears to break this pattern. The parties do not address Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008) because the supreme court decided it after they filed all their briefs in this case. The Brennans completed timely service of their complaint against Wadlow (a teenaged driver) by serving Wadlow’s father at the father’s place of business — because Wadlow used that address as his residence on his driver’s license. After the statute of limitations ran, the circuit court granted Wadlow’s motion to dismiss. The supreme court affirmed. It rejected all the Brennans’s arguments for reversal, which turned on whether the business was young Wadlow’s usual place of abode and whether the teenager committed fraud and misrepresentations about his residence.
Brennan is thus a completed-but-defective service case where commencement should have been found. The decision, however, does not mention or address Lyons II. To be sure that the Brennans made no argument from Lyons II or similar cases, we have reviewed the record and the briefs in Brennan. Compare United States v. Sithithongtham, 192 F.3d 1119, 1123 (8th Cir. 1999) (Arnold, J.). The Brennan plaintiffs never relied on Lyons II or argued that their timely but defective service commenced the case and tolled the limitations period. The Brennans’s waiver of an argument that would have preserved their lawsuit does not alter the well-established legal landscape that we have explored in this opinion.
III.
As in Lyons II, Tu made timely service of his lawsuit. As in Lyons II, the circuit court here correctly held that his completed service was defective — because Dr. Clouse’s office was not his residence and Mrs. Clouse was not his agent for service. However these circumstances are characterized — attempted service or timely completed service later ruled invalid • — ■ should not, and we hold does not, affect the commencement inquiry. It serves no useful purpose to ponder whether service that is made incorrectly is really “completed” when measured against some Platonic form of ideal service. Here the law must be practical and clear. It is: when the plaintiff completes timely service of the summons and complaint, he commences his case even if time reveals that the service was defective in some particular. This standard, settled by Lyons II and counter-balanced by Green’s no-service rule, will answer the mine run of cases.
As Dr. Clouse points out, we strictly construe our service rules. Those rules insure personal jurisdiction by protecting defendants’ Due Process rights and in particular the right to notice of the lawsuit. Posey, 365 Ark. at 161-62, 226 S.W.3d at 763. Dr. Clouse prevailed on this issue because service was imperfect. The commencement inquiry under Rule 3 and the saving statute, however, preserves equally important rights. When a plaintiff files his case during the limitations period, and serves it promptly but imperfectly under Rule 4, if the limitations period has expired then he deserves the grace period provided by our saving statute to refile his case and serve it properly. Cole v. First National Bank of Fort Smith, 304 Ark. 26, 30-31, 800 S.W.2d 412, 415 (1990). If the law were otherwise, the beneficent purpose of our saving statute would be thwarted. Tu timely commenced his case pursuant to Rule 3, and thus he was entitled to a dismissal without prejudice and the shelter of the saving statute.
Affirmed.
Vaught and Miller, JJ., agree.
There were two appeals in the Lyons case, Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990) (Lyons I), and the decision cited by the circuit court, Lyons II. | [
48,
124,
-107,
76,
8,
33,
48,
-76,
89,
2,
51,
83,
-19,
-64,
20,
45,
97,
111,
65,
114,
29,
51,
6,
32,
-14,
-109,
-38,
85,
-79,
-17,
-28,
-35,
72,
56,
-54,
-11,
70,
74,
-119,
88,
2,
-126,
25,
108,
113,
-108,
48,
115,
88,
7,
49,
47,
-31,
46,
63,
-113,
76,
40,
93,
-67,
-64,
-80,
-101,
5,
127,
16,
-79,
38,
28,
3,
-6,
12,
-128,
57,
51,
-24,
114,
-74,
-126,
116,
69,
-99,
0,
98,
98,
32,
65,
-3,
-48,
-120,
46,
28,
31,
7,
-119,
73,
11,
45,
-74,
-99,
116,
-108,
39,
126,
-35,
-36,
30,
44,
10,
-118,
-110,
-93,
-49,
-64,
-100,
42,
-17,
-25,
52,
16,
-49,
-18,
92,
71,
27,
-101,
-102,
-106
] |
Sam Bird, Judge.
Michelle Logan Jones was convicted in a bench trial of possession of marijuana with intent to deliver and possession of drug paraphernalia with intent to use while in the course of and in furtherance of a felony drug offense. The court fined appellant $300, ordered her to pay court costs, ordered her to perform thirty hours of community service within six months, suspended her driver’s license for six months, and placed her on probation for five years. Appellant’s sole point on appeal is that the circuit court erred in denying her motion to suppress. We affirm.
On November 21, 2005, appellant was charged with felony possession of marijuana with intent to deliver and felony possession of drug paraphernalia with intent to use while in the course of and in furtherance of a felony drug offense. On June 2, 2006, appellant filed a motion to suppress her statement and physical evidence. On September 11, 2006, the circuit court simultaneously held a bench trial on the felony charges against appellant and a hearing on appellant’s motion to suppress.
At the hearing, Michael Blevins, a North Little Rock police officer, testified that on the night of October 1, 2005, he was dispatched to investigate an anonymous call regarding loud music at the 2500 block of North Berkley. He said that he arrived at the location in his police car and saw two cars parked on the side of the street. He made contact with the occupants of the rear car and then made contact with those in the second car. Appellant was in the driver’s seat of the second car with the windows down; there was also a passenger in the front seat. Officer Blevins testified that he asked appellant if she was playing loud music, to which she responded, “No.” Officer Blevins testified that he then asked both appellant and her passenger if they “had anything illegal inside the car.” Appellant responded, “Yes, sir, I have marijuana in my car.” Officer Blevins asked them to step out of the car. He then asked appellant where the marijuana was, and she said it was in the passenger-side door. Officer Blevins testified that appellant then told him to look in the glove compartment, where he found another bag of marijuana. At that point appellant told Officer Blevins that there was more marijuana under the driver’s seat. When he found a plastic baggie with marijuana, appellant said, “That’s not all. Look in the brown paper bag.” Officer Blevins found the majority of the marijuana with some scales and a marijuana pipe in a paper bag under the driver’s seat. He arrested appellant and took her to the Levy substation where Detective John Nannen took her statement. In her statement, appellant admitted purchasing marijuana and possessing it with the intent to deliver.
Appellant argued in her motion to dismiss, after the State’s presentation of its case, and at the close of all of the evidence that the marijuana and drug parapernalia seized from appellant’s car as well as appellant’s statement to Detective Nannen should be suppressed because Officer Blevins’s question regarding whether she had “anything illegal” was impermissible under the Arkansas Rules of Criminal Procedure and the U.S. Constitution. The circuit court denied appellant’s motions to suppress, finding that appellant was not being detained when Officer Blevins was questioning her and that his questions were permissible under Rule 2.2(a) of the Arkansas Rules of Criminal Procedure because he was investigating a call about loud music. Appellant filed this appeal, arguing that the circuit court’s holding regarding Rule 2.2(a) was erroneous.
In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court’s findings. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Id.
The supreme court has explained that there are three types of encounters between police and private citizens.
The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. The second polic'e encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.
Stewart v. State, 332 Ark. 138, 144, 964 S.W.2d 793, 797 (1998)(citing Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998)). The State does not argue that the encounter in this case was justified by either articulable suspicion or probable cause. Moreover, appellant does not dispute that the initial encounter between her and Officer Blevins to investigate the loud music was permissible under Rule 2.2. The dispute is whether Officer Blevins’s additional question, concerning whether appellant “had anything illegal,” was permissible under Rule 2.2. Appellant argues that an encounter under Rule 2.2 is limited by the purpose for which the encounter is permitted — in this case, a report of loud music — and that further questioning about unrelated potential criminal activity is not permissible absent reasonable suspicion. See Ark. R. Crim. P. 3.1. The State contends that an encounter under Rule 2.2 is not so limited and that Officer Blevins’s general inquiry did not present an additional intrusion upon appellant and was therefore permissible under Rule 2.2, which authorizes the officer “to request any person to furnish information.”
Rule 2.2(a) provides that “[a] law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.” Ark. R. Crim. P. 2.2(a). The supreme court has clarified that an encounter under this rule is permissible “only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime.” Stewart v. State, 332 Ark. 138, 146, 964 S.W.2d 793, 797 (1998); see also Stevens v. State, 91 Ark. App. 114, 208 S.W.3d 843 (2005), and Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105 (2000).
In determining the extent of permissible interruption that a citizen must bear to accommodate a law enforcement officer who is investigating a crime under Rule 2.2, the supreme court has stated that the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. Baxter v. State, 274 Ark. 539, 543, 626 S.W.2d 935, 937 (1982). To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. Id. Our case law has consistently held that Rule 2.2 authorizes an officer to request information or cooperation from citizens where the approach of the citizen does not rise to the level of being a seizure and where the information or cooperation sought is in aid of an investigation or the prevention of crime. Wilson v. State, 364 Ark. 550, 559, 222 S.W.3d 171, 179 (2006).
Here, Officer Blevins had authority under Rule 2.2 to approach appellant’s car to investigate a particular crime, a complaint of loud music. After approaching her car, he asked her if she was playing loud music to which she responded, “No,” and then asked her and her passenger if they “had anything illegal inside the car.” There is no evidence that Officer Blevins was any more overbearing or intimidating when he asked this particular question than when he asked his first question about the music. Indeed, he testified that it was merely a routine question that he always asked. Accordingly, we do not find Officer Blevins’s additional inquiry to be outside the scope of Rule 2.2 or to have caused the encounter to rise to the level of a seizure. Therefore, we hold that the circuit court’s ruling denying appellant’s motion to suppress is not clearly against the preponderance of the evidence, and we affirm.
Glover and Vaught, JJ., agree. | [
80,
110,
-28,
28,
47,
65,
56,
-76,
81,
-105,
-12,
-77,
-83,
-62,
12,
41,
-7,
95,
116,
105,
-63,
54,
69,
32,
50,
-13,
104,
-45,
-68,
75,
-20,
-68,
93,
48,
-118,
77,
102,
89,
-89,
90,
-122,
37,
-119,
115,
8,
-30,
52,
59,
26,
15,
49,
31,
-125,
45,
17,
66,
109,
105,
91,
-67,
72,
-14,
-103,
5,
-17,
22,
-109,
36,
-102,
-89,
-8,
72,
-48,
49,
16,
-24,
115,
-110,
2,
-12,
107,
-103,
-124,
100,
98,
0,
29,
-19,
-68,
-56,
62,
62,
28,
-90,
-40,
73,
67,
76,
-73,
-74,
108,
90,
14,
-30,
91,
-57,
21,
108,
-119,
-50,
-68,
-111,
-55,
32,
-42,
-13,
-21,
35,
116,
101,
-51,
98,
84,
85,
113,
-101,
-49,
-41
] |
John B. Robbins, Judge.
Appellant William Ike Seaton, Jr., appeals his conviction for the second-degree murder of Gene Woodall, who was shot to death on April 11, 2005, at his rural residence in Story, Arkansas. Appellant was tried before a jury in Montgomery County Circuit Court. Appellant undeniably shot Woodall, but appellant claimed it was in self-defense. Thus, the trial centered on appellant’s intent on the night of the shooting. Appellant argues that the trial court abused its discretion in admitting into evidence two written statements, one from his sister and one given from him. Appellant contends that these two evidentiary rulings were in error and warrant the reversal of his conviction and remand for retrial. We reverse the trial court’s ruling on the admission of his sister’s written statement, but we affirm the admission of appellant’s statement.
To give context to this discussion, we set out the undisputed evidence presented to the jury. On the night in question, appellant drove to his sister’s house and had an unpleasant encounter with his sister, Debbie Pope, and his girlfriend, Carolyn Dunn. Then, appellant drove away in his truck along the dirt road. Appellant said he was flagged down by his sister’s neighbor, Woodall, as he drove by Woodall’s trailer. The two men engaged in a verbal confrontation, both men had shotguns, and at least one shot was fired. Woodall died from a spray of shot, which struck Woodall in the back and shoulder. Woodall succumbed on his front porch. Woodall’s twelve-year-old son was inside the trailer and heard the commotion, but he did not witness the shooting. Woodall’s son told police he observed what appeared to be a red truck driving away.
The next day, appellant was arrested for public intoxication and ended up in a jail in Morrilton. The officers investigating the murder located appellant in that jail two days after the shooting. After being provided verbal and written Miranda warnings, appellant was told that the officers were there to talk about Woodall being shot. Appellant admitted that he shot at Woodall, in response to Woodall shooting at him, but he was surprised to learn that Woodall died. This statement was admitted into evidence over appellant’s objection.
Appellant’s sister was interviewed twice by a law enforcement officer. Pope gave a more damaging statement the second time, implicating her brother. Though the State issued a subpoena for her, which was attempted to be served in the weeks and days before trial, Pope did not appear when called as a witness during trial. The State proceeded with other witnesses that day, and at the conclusion of that day’s presentation, a hearing was conducted to determine the State’s efforts to procure Pope’s attendance, as described above. The trial court directed that a warrant issue for contempt against Pope, in the hopes that this would compel Pope’s attendance the next day. The sheriffs office attempted to serve Pope twice that night, and once before trial resumed the next morning, but Pope did not appear. The judge found that despite “considerable efforts” and “extreme measures” in trying to procure Pope’s attendance, she was unavailable. Her statement was admitted over objections based upon hearsay rules and the Confrontation Clause.
At trial, appellant testified that he was angry with his girlfriend and his sister that day, that they all argued and he left, and that Woodall had flagged him down with a flashlight. Appellant testified that Woodall cursed him and told him not to come back to Pope’s house. Appellant said he began to drive away when Woodall shot his truck, whereupon appellant exited his truck with a .20 gauge shotgun, hid behind a tree, and came out to shoot toward Woodall to scare Woodall. Appellant believed he had created an opportunity to leave after he shot, so he re-entered his truck and drove away, throwing away the shotgun while crossing a bridge. Appellant did not think he actually hit Woodall, but expected he would be in trouble for shooting at Woodall, even if it was self-defense. Appellant said he told the officers that he “shot at the son of a bitch.”
On this evidence, the jury found appellant guilty of second-degree murder. A person commits second-degree murder in either of two ways. The first is when a person, “[k]nowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-103(a)(1) (Repl. 2006). A person also commits second-degree murder if “[w]ith the purpose of causing serious physical injury to another person, . . . [he] causes the death of any person.” Ark. Code Ann. § 5-10-103(a) (Repl. 2006).
A person’s intent or state of mind at the time of the offense is seldom apparent. Harshaw v. State, 348 Ark. 62, 71 S.W.3d 548 (2002). However, a person is presumed to intend the natural and probable consequences of his actions. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). Intent also can be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the trauma suffered by the victim. Harshaw v. State, supra. Here, the State had to prove that appellant acted knowingly or purposefully, as described above.
Appellant first contends that the trial court erred by permitting the State to introduce into evidence the second written statement Pope gave to law enforcement officers. This ruling was first decided on the basis of whether it met with hearsay exceptions outlined in our Rules of Evidence, and then decided on the basis of constitutional rights to confront witnesses. The trial judge rejected all of appellant’s arguments to exclude Pope’s statement. Pope’s statement was very similar to what appellant admitted happened that night, with the exception that Pope said her brother called her that night, both before and after the shooting, initially threatening to kill Woodall, and then later confirming that Wood-all was dead.
Appellant’s first argument on appeal concerns the hearsay exceptions under Arkansas Rules of Evidence and the constitutional principle of the right to confront witnesses. We move directly to the constitutional argument, because regardless of the ruling regarding admissibility under the Rules ofEvidence, appellant’s constitutional rights were violated, mandating reversal. Moreover, at the conclusion of the arguments about Pope’s statement, defense counsel affirmatively stated to the trial court that “for purposes of the record, my only objection is that I’ve been denied the right of confrontation.”
The Confrontation Clause, found in both the United States and Arkansas Constitutions, is intended to permit a defendant to confront the witnesses against him and to provide him with the opportunity to cross-examine those witnesses. See Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that out-of-court statements by a witness that are “testimonial” are barred under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross examine the witness, regardless of whether such statements are deemed reliable by the court, abrogating Ohio v. Roberts, 448 U.S. 56 (1980). Testimonial statements cause the declarant to be a witness within the meaning of the Confrontation Clause, because this means one is “bearing witness” against the accused. Davis v. Washington, 546 U.S. 1213 (2006). It is the testimonial character of the statement that separates it from other hearsay which, while subject to traditional limitations on hearsay evidence, is not subject to the Confrontation Clause. Id.
There can be no dispute that Pope’s statement was testimonial in that it was given at the behest of law enforcement officers in their attempt to solve a murder case, and it caused Pope to bear witness against her brother. Thus, the query is distilled to whether Pope was unavailable and whether appellant had a prior opportunity to cross-examine Pope.
The party offering the testimony has the burden of proving the witness unavailable. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Also, the party seeking to introduce the prior testimony of an unavailable witness must show that a good-faith effort has been made to procure the attendance of the missing witness. Vick, supra; Register, supra; Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992). Here, the State made good-faith efforts to procure Pope’s attendance, but even if that were not enough, the trial court directed the issuance of a warrant in an unsuccessful effort to compel attendance. Accordingly, Pope was unavailable.
However, appellant did not have a prior opportunity to cross-examine his sister. The State appears to realize this difficulty because it offers alternative reasons to affirm the trial court on this constitutional ruling. First, the State asserts that Pope’s statement was offered for a non-hearsay purpose, or alternatively that the admission of Pope’s statement was harmless beyond a reasonable doubt. Neither are persuasive, and we are compelled to agree with appellant and reverse on this issue.
The State wanted to have Pope’s statement admitted because it provided the single most devastating piece of evidence in this trial, which was appellant’s state of mind via his words to his sister. In Pope’s statement, she recounted that:
[Appellant] called me and told me about Gene [Woodall] pointing a gun at him. He, Ike said, “I’ll kill that son of a bitch.” After all the calls he called back and said, “Debbie your buddy is dead.”
The State in its own brief asserts, in a different argument section, that it used Pope’s statement “to show the events and timing surrounding the shooting, the circumstances of which showed Appellant’s motive and state of mind.” State’s Brief at page 11. The State further avers that Pope’s statement “was more probative on the point than any other that the State could procure through reasonable means. Appellant called Pope and told her what he did; therefore, there was no other witness able to give this testimony.” State’s Brief at page 9. This statement was offered for the truth of the matter it asserted and cannot be deemed harmless beyond a reasonable doubt. On this point, we must reverse and remand for a new trial. However, because the second point raised on appeal is likely to recur on remand, we address it as follows.
Appellant contends that the trial court erred in denying his motion to suppress the statement appellant gave to police because it was the product of a false promise of help, rendering appellant’s statement involuntary. A statement induced by a false promise of reward or leniency is not a voluntary statement. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005). When an interrogating law enforcement officer makes a false promise that misleads, and a confession is given because of that false promise, then the confession has not been made voluntarily, knowingly, and intelligently. Id. However, for the statement to be involuntary, the promise must have induced or influenced the confession. Id.
When we review a trial court’s ruling on the voluntariness of a confession, we make an independent determination based on the totality of the circumstances including the age, experience, education, background, and intelligence of the defendant. Dickerson v. State, 363 Ark. 437, 214 S.W.3d 811 (2005). We defer to the superior position of the trial judge to evaluate the credibility of witnesses who testify at a suppression hearing. Id. We will reverse a trial court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Id.
In this case, appellant was interviewed two days after the shooting in the Morrilton jail facility, where he was being held on an unrelated charge. The written statement set forth the undisputed factual scenario outlined above, but affirmatively stated that appellant knew he shot Woodall, but that he only intended to scare Woodall and was unaware Woodall had died.
Sheriff Spivey was in that meeting, along with two other officers. The sheriff had known appellant for twenty years. Appellant was given Miranda warnings, which he signed, waiving those rights. The written waiver included the following:
I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
AH three law-enforcement officers testified at the suppression hearing that appellant appeared to be coherent, and that they did not threaten or offer him anything to give the statement. Appellant was in his late fifties at the time, and he had earned his GED.
Right after the form was completed, one of the officers told appellant they were there to talk about the death of Woodall. The sheriff admitted that he probably said to appellant that he should tell the interviewer what happened, “and I’ll help you any way I can.” Appellant immediately said, “yeah, I shot the son-of-a-bitch.” The whole interview took about thirty minutes, during which appellant did not assert any rights or express any remorse. Appellant did not testify at the suppression hearing. After the judge entertained argument of counsel, the judge denied the motion to suppress finding that the statement was not involuntary. We find no error and affirm.
For the statement to be involuntary, the promise must have induced or influenced the confession. Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000), overruled on other grounds in Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In determining whether there has been a misleading promise of reward or leniency, this court views the totality of the circumstances and examines, first, the officer’s statement and, second, the vulnerability of the defendant. Id. There are articulated factors we look to in our determination of whether the defendant was vulnerable, which include: 1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998).
In this instance, there was no evidence that appellant was vulnerable. Appellant was an adult with a high-school equivalency education. He appeared to be coherent and in fair physical condition. He was being detained for unrelated criminal charges and was interviewed by law enforcement officials, one of whom he had known personally for twenty years. There is no indication that the general statement, “I’ll help you any way I can,” induced this confession. The whole process took just over thirty minutes. Considering the totality of the circumstances, and giving due deference to credibility determinations to be decided by the trial court, we affirm this point.
Reversed and remanded for retrial.
Griffen and Marshall, JJ., agree. | [
112,
-20,
-31,
-100,
25,
-32,
120,
-72,
114,
-45,
115,
82,
45,
-37,
17,
57,
38,
-33,
85,
105,
-59,
-73,
23,
97,
-45,
51,
-5,
-43,
54,
-49,
60,
-42,
91,
112,
-54,
65,
70,
72,
-27,
88,
-114,
0,
-87,
112,
-120,
66,
48,
62,
54,
7,
49,
62,
-93,
42,
26,
-117,
105,
44,
91,
-68,
16,
57,
-85,
-123,
-18,
16,
-95,
-89,
-101,
5,
120,
40,
-45,
49,
0,
-2,
115,
18,
-126,
-12,
105,
-87,
44,
102,
99,
33,
89,
-17,
-96,
-103,
46,
111,
-107,
-121,
-102,
1,
65,
45,
-105,
-99,
110,
20,
30,
122,
-1,
69,
92,
108,
-121,
-50,
-76,
-79,
-51,
40,
16,
-70,
-21,
39,
48,
117,
-33,
-30,
84,
-59,
90,
-5,
-118,
-106
] |
John Mauzy Pittman, Chief Judge.
The appellant in this criminal case was tried by a jury and convicted of committing second-degree domestic battery by stabbing a family or household member on December 7, 2006, and was sentenced as a habitual offender to twelve years’ imprisonment. On appeal, he argues that the trial court erred in denying his motion for a directed verdict on the ground that there was no substantial evidence that the victim was a family or household member. We affirm.
Arkansas Code Annotated § 5-26-304(a)(2) (Repl. 2006) provides that a person commits domestic battery in the second degree if, with the purpose of causing physical injury to a family or household member, he causes physical injury to such a person by means of a deadly weapon. The term “family or household member” is defined, inter alia, as persons who presently or in the past have resided or cohabited together. Ark. Code Ann. § 5-26-302(2) (F) (Repl. 2006).
Appellant’s argument is based on the fact that the victim in this case denied that she had cohabited with him. Appellant cites Wrenn v. State, 92 Ark. App. 167, 211 S.W.3d 582 (2005), for the proposition that there can be no substantial evidence of cohabitation where the fact of cohabitation is denied by the victim. It is absurd to read Wrenn so broadly. The testimony of the victim in a criminal case is not inviolable but, like the testimony of any other witness, is subject to the jury’s scrutiny. The supreme court has repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the State, i.e., must consider only the evidence that supports the verdict. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). The jury is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. A conviction must be affirmed if it is supported by substantial evidence, i.e., evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.
Here, appellant himself took the stand at trial. He testified that, up until the date of the altercation that resulted in his arrest, he shared a residence with the victim, that he gave the victim money for some utility bills, that the cable service installed in the residence was in his name, that he received the cable bill and his bank statement at that address, and that he kept ninety percent of his clothing there. He also stated that he recognized the knife with which the victim was stabbed because he “lived there” and “used it, cooked with it, every day.” Finally, appellant testified that, while incarcerated, he authorized the release of money to the victim because he “knew that she needed it for bills . . . because” he “lived there and . . . knew when the bills were due and what was due.” Appellant’s testimony is unquestionably substantial evidence that he cohabited with the victim, and we therefore affirm.
Affirmed.
Glover and Miller, JJ., agree. | [
80,
-20,
-19,
124,
8,
96,
-86,
-68,
-14,
-121,
54,
-10,
111,
-52,
5,
107,
32,
127,
69,
105,
-39,
-73,
39,
65,
114,
-13,
16,
-43,
-79,
-53,
-68,
-34,
69,
112,
-54,
-43,
98,
8,
-25,
88,
-122,
15,
-70,
69,
64,
-62,
100,
106,
94,
15,
49,
-98,
-13,
42,
25,
-52,
75,
46,
75,
55,
88,
57,
-118,
23,
-49,
16,
-77,
52,
-103,
37,
112,
44,
-100,
49,
0,
-20,
115,
-106,
-126,
116,
109,
-101,
45,
98,
98,
32,
29,
-57,
-87,
-119,
-81,
119,
-99,
39,
-104,
104,
11,
44,
-65,
-73,
126,
117,
40,
-6,
117,
12,
120,
108,
-94,
-49,
-108,
-71,
13,
32,
-112,
-80,
-29,
-89,
48,
113,
-51,
-30,
92,
4,
91,
-37,
-114,
-105
] |
Brian S. Miller, Judge.
A Ouachita County jury convicted appellant Jeffery Lynn Dailey of manslaughter, abuse of a corpse, and a firearm enhancement. Dailey was sentenced to eighteen years’ imprisonment. Daily appeals only the abuse of a corpse conviction, arguing that there was insufficient evidence to sustain it. We disagree and affirm.
The trial evidence showed that Dailey shot Sheila Dillard in his living room on March 25, 2006. Dillard’s decomposing body was recovered four days later in an unheated and locked “junk room.” She had been placed in fifty-five-gallon garbage bags, secured by duct tape, and covered with a tarp. Other items were stored in the same room and a pair of coveralls were jammed under the door.
At the close of the State’s case, Dailey moved for a directed verdict on the charge of abuse of a corpse, arguing that he took no action which was damaging to Dillard’s corpse. The motion was denied. In Dailey’s case in chief, his mother testified that it was neither uncommon for the “junk room” to be closed, nor was it uncommon for something to be placed under the door. Dailey then rested and renewed his directed-verdict motion. His motion was again denied and he was found guilty of manslaughter, abuse of a corpse, and a firearm enhancement.
Dailey now appeals, arguing that the trial court erred in failing to grant his motion for directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Simmons v. State, 89 Ark. App. 34, 199 S.W.3d 711 (2004). To determine if evidence is sufficient, there must be substantial evidence, direct or circumstantial, to support the verdict. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, without speculation or conjecture. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the conviction. Simmons, supra.
The crime of abuse of a corpse is a Class D felony which occurs when someone knowingly “[djisinters, removes, dissects, or mutilates a corpse”; or “[pjhysically mistreats a corpse in a manner offensive to a person of reasonable sensibilities.” Ark. Code Ann. § 5-60-101 (Repl. 2005). The Arkansas Supreme Court has held that one who mishandles or neglects a corpse may also be guilty of the abuse of a corpse. See Dougan v State, 322 Ark. 384, 912 S.W.2d 400 (1995). In Dougan, the appellant wrapped her stillborn baby in bloody sheets and placed him in a dumpster. Id. She was charged with the abuse of a corpse but moved for a directed verdict, asserting that there was insufficient evidence to establish that she physically mistreated the corpse of her stillborn child. Id. The State, however, argued that “the placing of a corpse in the dumpster constituted physical mistreatment of a corpse.” Id. The trial court denied the motion and the appellant was convicted. Id. The supreme court affirmed her conviction, holding that there was sufficient proof for the jury to conclude that appellant’s conduct amounted “to physical mistreatment of a corpse in a manner offensive to a person of reasonable sensibilities.” Id.
The question we must answer is whether the trial court clearly erred in finding that Dailey’s treatment of Dillard’s dead body was physical mistreatment, offensive to a person of reason able sensibilities. We hold that this case is similar to Dougan in that both charged parties attempted to hide dead bodies. In Dougan, the appellant wrapped the corpse in bloody sheets and hid it in a dumpster, while Dailey wrapped the corpse in garbage bags and hid it in a “junk room” where it began decomposing. Both cases involved the mishandling or neglect of a corpse constituting physical mistreatment that would offend a person of reasonable sensibilities. Therefore, we affirm.
Affirmed.
Pittman, C.J., and Glover, J., agree. | [
84,
-20,
-52,
29,
41,
96,
50,
-72,
66,
-13,
96,
83,
101,
-6,
77,
107,
50,
95,
85,
97,
-59,
-105,
51,
73,
-78,
-109,
-71,
-41,
51,
75,
-20,
-75,
76,
112,
-22,
-43,
-58,
72,
-41,
88,
-114,
9,
-117,
-14,
71,
66,
34,
47,
-28,
14,
-75,
23,
-93,
11,
63,
-49,
-53,
46,
91,
47,
74,
-103,
-56,
-105,
107,
18,
-77,
-92,
-98,
1,
-40,
58,
28,
57,
0,
-20,
49,
-74,
-122,
84,
47,
-119,
12,
96,
35,
3,
28,
-51,
32,
-120,
7,
47,
-112,
-90,
-102,
9,
75,
47,
-105,
-71,
116,
52,
30,
98,
103,
68,
125,
108,
-114,
-98,
16,
-79,
9,
48,
-106,
56,
-21,
-91,
36,
49,
-52,
-30,
88,
69,
81,
-37,
-50,
-109
] |
Brian S. Miller, Judge.
This case involves the right of appellants, Anthony and Elaine Hunter, to change the surname of their minor son, J.H., from Haunert to Hunter, and to terminate appellee Timothy M. Haunert’s visitation rights with J.H. While seemingly simple, this case is complicated by several facts. First, Anthony impregnated Elaine while she was married to Haunert. Second, J.H. was bom while Elaine and Haunert were married and Haunert, for all intents and purposes, was the only father J.H. had for the first two years of his life, until Elaine divorced Haunert and married Anthony. Third, the divorce decree entered by Elaine and Haunert found that Haunert stood in loco parentis to J.H.; ordered that Haunert have visitation with J.H.; and required Haunert to pay child support and provide medical insurance for J.H.
The Hunters petitioned the Independence County Circuit Court to change J.H.’s surname to Hunter and to terminate Haunert’s visitation rights. The trial court denied the Hunters’ petition and found that the marriage of Anthony and Elaine was not a material change of circumstances warranting the termination of Haunert’s visitation rights. The court also denied the Hunters’ petition to change J.H.’s surname.
On appeal, the Hunters argue that: (1) the court erred by denying their petition to change J.H.’s surname; (2) the court infringed upon their Fourteenth Amendment Due Process rights by permitting Haunert to have visitation with J.H., against their wishes; (3) the court erred in finding that their marriage was not a material change of circumstances warranting the termination of Haunert’s visitation rights.
We agree that the Hunters’ marriage was not a material change in circumstances warranting the termination of Haunert’s visitation rights. We also hold that the Hunters’ rights to due process are not violated by the order of the trial court. Therefore, we affirm the trial court’s ruling that Haunert is permitted to continue his visitation with J.H. The trial court, however, erred in denying the Hunters’ petition to change J.H.’s surname to reflect the name of his parents, by whom he is being raised. Therefore, we reverse on that point.
I. Background
Elaine and Haunert were married in 1988 and lived together until their separation in August 2002. Their divorce decree (DR-02-384-4) was entered on March 4, 2003. During their marriage, two children were born: T.H. (d.o.b. 8-18-91) and J.H. (d.o.b. 5-1-00). Although Haunert was not the biological father of either child, the divorce decree specifically found that Haunert had stood in loco parentis to the children and the decree ordered Haunert to pay child support and to maintain health insurance for the chil dren. Elaine married Anthony on April 29, 2004, and a paternity test established Anthony as the father of J.H.
Haunert filed a petition for contempt on July 21, 2005, alleging that Elaine was refusing him visitation with the minor children. The parties conferred and resolved their conflict by consent order on September 1, 2005. That order reaffirmed the parties’ original agreement permitting Haunert to have visitation with J.H. and T.H. It also allowed Haunert to make up the visitation that he had missed.
Elaine and Haunert then petitioned and counter-petitioned the court concerning various issues from visitation to custody, culminating in Elaine’s June 14, 2006, petition to terminate Haunert’s visitation rights with J.H. Approximately one week later, the Hunters petitioned to have Anthony adjudicated the biological father of J.H., to have J.H.’s surname changed to Hunter, and to amend J.H.’s birth certificate to reflect that Anthony was his father.
II. The Hearing
A hearing on the petitions was held on August 28, 2006. Prior to this hearing, the parties agreed that Haunert would have custody of T.H., who was neither Anthony’s nor Haunert’s biological son. At the hearing, Haunert testified that although he was not the biological father of the children, he had paid child support and had maintained health insurance on the children. He also stated that the Hunters had denied him visitation on at least four occasions. He further stated that he has a father-son relationship withJ.H.; that he has beenJ.H.’s father since he was born; that J.H. calls him “dad”; that he buys J.H. clothes and attends his baseball games; that his family considers J.H. his child and treats him as such; that he purchased a dirt bike for J.H.; and that it was not in J.H.’s best interest to have his last name changed.
T.H. testified that he and J.H. have a good relationship. He said that J.H. refers to Haunert as “dad” and to Anthony as “step-dad.” He said that he and Anthony have a bad relationship and that he has not been in the Hunters’ house in months.
Haunert’s neighbor, Linda Dickerson, testified that J.H. was “crazy about” Haunert. She said that Haunert and J.H. have a wonderful relationship and that she had not seen anything that would suggest that Haunert was not capable of raising his children.
Anthony testified that J.H.’s surname should be changed to Hunter because J.H. is confused as to why his surname is Haunert. Anthony said that he, Elaine, and all of his seven children, except J.H., carry the Hunter surname. Anthony stated that J.H. is very close to his siblings and that he knew he was J.H.’s father from the time he was born. Moreover, J.H. has lived with Anthony and Elaine since their marriage in 2004. Anthony also testified that he supports Elaine in whatever decisions she makes regarding whether Haunert should continue to have visitation with J.H.
Elaine testified that J.H. has always known Anthony as his father as proven by the fact that J.H. did not visit Haunert on Father’s Day in 2005. She said that J.H. is confused by having to call two men “dad” and that Haunert undermines the Hunters’ parenting decisions. She stated that she wants a “normal life” and that having to send J.H. to Haunert’s house, which she believes is somewhat unsafe, infringes on her and Anthony’s parental rights. She stated, however, that Haunert pays child support and that she has never given him any of the money back.
The trial court found that there was insufficient proof to support the Hunters’ petition to change J.H.’s surname. The court entered an order (1) denying the Hunters’ request to terminate Haunert’s visitation with J.H.; (2) terminating child support; (3) granting full custody of T.H. to Haunert; (4) holding Elaine in contempt and ordering her to pay $500 attorney’s fee to Haunert; (5) denying the petition to change J.H.’s surname; (6) ordering Haunert to get rid ofJ.H.’s dirt bike; and (7) granting Haunert the right to attend J.H.’s parent-teacher conferences and school functions. This appeal followed.
III. Standard of Review
We review domestic-relations cases de novo on the record, and we will not reverse the trial court’s findings unless they are clearly erroneous. Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005). A trial court’s finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id. This deference is even greater in cases involving children, as a heavier burden is placed on the judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
IV Change of Surname
The Hunters first argue that the trial court erred when it refused to change J.H.’s surname to Hunter. When a party seeks to have a child’s surname changed, the following factors should be considered:
(1) the child’s preference; (2) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed surnames; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (6) the existence of any parental misconduct or neglect.
Huffman v. Fisher (Huffman I), 337 Ark. 58, 987 S.W.2d 269 (1999). Where a full inquiry is made by the trial court regarding the implication of these factors and a determination is made with due regard to the best interest of the child, the trial court’s decision will be upheld where it is not clearly erroneous. Gangi v. Edwards, 93 Ark. App. 217, 218 S.W.3d 339 (2005). The burden of proof is on the moving party to demonstrate that the name change is in the best interest of the child. Id. The court also has the discretion to consider other factors when determining what surname would be in the best interest of the child. See Bell v. Wardell, 72 Ark. App. 94, 34 S.W.3d 745 (2000). In its letter opinion, the trial court determined that insufficient evidence was presented to support the name change. We disagree.
The trial court erred by denying the Hunters’ petition to change J.H.’s surname to Hunter. Three of the Huffman factors are relevant to this case. Factor three, which focuses on the length of time the child has borne a given name, weighs in favor of keeping J.H.’s surname the same. This is true because J.H. has borne the name Haunert all of his life. Factors two and five, however, clearly weigh in favor of the proposed name change. Changing J.H.’s surname will help preserve and develop his relationship with his biological parents, Anthony and Elaine, both of whom carry the Hunter name. J.H. may also be subjected to difficulties, harassment, or embarrassment simply because he bears a name different from that of his parents and siblings. Indeed, J.H. is being raised in the home with his biological parents and a younger sibling, all of whom carry the name Hunter. He should be allowed to bear their name. For these reasons, we reverse and remand with instructions to enter an order granting the name change.
V. Due Process
The Hunters next argue that, as J.H.’s parents, they have a fundamental liberty interest in deciding who has visitation with J.H. See Troxel v. Granville, 530 U.S. 57 (2000). They argue that the trial court’s refusal to terminate Haunert’s court ordered visitation with J.H. infringes upon their Fourteenth Amendment right to due process. The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property, without due process of law. Id. The Supreme Court of the United States has held that parents have a fundamental right to make decisions concerning the care, custody, and control of their children. Id.
The Hunters have waived their due process argument. Elaine and Haunert entered their divorce decree on March 4, 2003. The decree was entered by consent and provides that Haunert stood in loco parentis to J.H. It ordered visitation between Haunert and J.H. and Elaine never asserted that the decree violated her due process rights. Although visitation between Haunert and J.H. continued after Anthony and Elaine were married, Anthony never objected to it, although he knew that J.H. was his biological son. Indeed, less than one month before filing the petition to terminate Haunert’s visitation rights, Elaine entered a consent order reaffirming Haunert’s visitation rights. Anthony and Elaine also continued to accept child support checks for J.H. and allowed Haunert to pay for J.H.’s medical insurance well after their marriage.
We would affirm even if the Hunters had not waived their due process argument because Troxel is distinguishable from the present case. In Troxel, the Supreme Court held that the State of Washington’s grandparent-visitation statue was unconstitutional. 530 U.S. at 67. Consequently, the trial court’s order granting visitation to grandparents, over the objection of the child’s mother, was reversed. The grandparents in Troxel never stood in loco parentis to the grandchild, and the award of visitation was based on a statute and not a divorce decree.
In Robinson, 362 Ark. at 239, 208 S.W.3d at 143, the Arkansas Supreme Court distinguished Troxel. Unlike Troxel, in which grandparents sought visitation, “the visitation in [Robinson] arose out of a custody determination in a divorce proceeding rather than from a lawsuit brought by nonparents pursuant to a statute.” Id. at 234, 208 S.W.3d at 143. The court further held that:
Moreover, and critical to our review in this case, the party awarded visitation in this case was found by the circuit court to stand in loco parentis to the child. In other words, the court granted visitation to a person considered to be, in all practical respects, a non-custodial parent.
Id. at 239, 208 S.W.3d at 143, 144. It is undisputed that Haunert’s visitation arose out of a divorce proceeding and was not brought pursuant to a statute. It is also undisputed that Haunert stood in loco parentis to J.H. Therefore, the precedent established in Robinson applies and the trial court did not err in denying the Hunters’ petition to terminate Haunert’s visitation with J.H.
VI. Material Change of Circumstances
Finally, the Hunters argue that the trial court erred in concluding that their marriage was not a material change of circumstances warranting the termination of Haunert’s visitation rights with J.H. The trial court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or of facts not known to it at the time of the initial order. While visitation is always modifiable, courts require more rigid standards for modification than for initial determinations in order to promote stability and continuity for the children and in order to discourage repeated litigation of the same issues. Id. The party seeking a change in the visitation schedule has the burden to demonstrate a material change in circumstances that warrants a change in visitation. Id. The best interest of the children is the main consideration. Id. The trial court found that no material change in circumstances existed to warrant a modification of the visitation schedule.
The trial court did not err in denying the Hunters’ petition to terminate Haunert’s visitation with J.H. The Hunters’ marriage was not a material change in circumstances sufficient to modify Haunert’s visitation rights. See Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). Further, terminating Haunert’s visitation rights would not be in J.H’s best interest. This is true because J.H. has known Haunert as his father his entire life and has enjoyed visitation with Haunert since his mother and Haunert divorced. His older brother, T.H., whom he has known since birth and with whom he has a good relationship, lives with Haunert. The record indicates that T.H. is not welcome in the Hunters’ home and, therefore, terminating Haunert’s visitation would also disallow J.H. the opportunity to maintain his relationship with T.H. For these reasons, we affirm on this point.
' Affirmed in part; reversed and remanded in part, with instructions.
Marshall and Vaught, JJ., agree. | [
-16,
-84,
29,
63,
59,
33,
-21,
28,
114,
-29,
102,
83,
-17,
-54,
20,
57,
-29,
15,
81,
122,
-57,
-77,
71,
-32,
114,
-69,
-39,
93,
-78,
79,
37,
-73,
92,
60,
10,
85,
70,
-118,
-115,
84,
6,
6,
-85,
106,
-63,
70,
38,
-65,
82,
15,
17,
-122,
-13,
46,
61,
-47,
-88,
40,
91,
-103,
-112,
92,
-85,
4,
95,
14,
-79,
52,
-14,
-124,
88,
45,
-112,
25,
8,
-23,
19,
-76,
2,
52,
43,
-67,
37,
96,
102,
-127,
37,
-25,
-96,
-103,
-52,
126,
29,
-25,
-101,
112,
11,
33,
-66,
-65,
124,
24,
-26,
126,
-27,
77,
28,
104,
26,
-114,
-42,
-127,
-51,
-16,
-20,
0,
-29,
71,
32,
113,
-53,
-96,
84,
-60,
112,
-13,
-50,
-110
] |
Wendell L. Griffen, Judge.
On April 23, 2007, the Sebastian County Circuit Court entered an order finding that appellee Teresa Shoemake presented proof of a boundary line by acquiescence between property belonging to her and appellant James Boyster. Appellant asserts that the circuit court clearly erred in making that finding, contending that appellee failed to prove that there was any mutual assent in establishing the boundary fine. We affirm, holding that the circuit court did not clearly err in finding that appellee presented sufficient evidence of mutual recognition of a boundary fine by acquiescence. However, we remand the case with instructions to amend the decree by adding a more specific description of the boundary fine between the parties’ land.
The parties are adjacent landowners in southern Sebastian County, with appellee’s property located south of appellant’s. Appellee, who acquired title to the property in 1996, alleged that the parties had acquiesced to an old fence north of the true boundary line. According to her testimony, the boundary-line dispute arose in summer 2005 when she lost several hunting dogs on her property. When she went to the disputed area on her four-wheeler to find the dogs, appellee saw that the fence had been cut, rocks had been picked up, and trees had been cut down. She saw appellant’s wife and asked, “What are you guys doing?” Appellee then learned that appellant had surveyed the property and discovered that the fence line was not on the boundary. Appellee described the fence as an old, rusty fence that had grown into the trees and stated that the fence had been on the property her entire life. She noted that her property was enclosed by fence on the west, north, and east sides. A highway was located on the south boundary of her property.
Appellee testified that her grandmother acquired the property in 1942 and that the property passed to her grandfather in 1945 after her grandmother’s death. Appellee was born in 1959, and she recalled visiting the property frequently. She noted that in the 1960s, the property on the other side of the fence was used as pasture land. She never saw anyone other than her family use the property south of the fence. Her family’s side of the fence contained trees, which had not been used for anything other than Christmas trees and recreation.
Appellee stated that the Shockleys sold their property to Bryan Tatum, appellant’s immediate predecessor in interest. She recalled a conversation with him where he acknowledged the fence line as the boundary line. During that conversation, he asked her if he could dig across her property and install a water line. After several days, she allowed him to dig across if he would brush hog the property. Appellee stated that she had a good relationship with Tatum and that he never questioned her about the fence being the property line.
Appellee also presented the testimony of many others. Jackie Paxton hunted on the property with appellee’s father, Bob Hig-ginbotham, and testified that Higginbotham instructed him that the property ended at the fence line. Paxton described the fence as in “decent” condition, and did not see evidence of anyone north of the fence making use of the property south of the fence. Alan Jones also hunted on the property with his grandfather and testified that his grandfather told him that appellee’s property extended to the fence line. Tommy Dale Jones cut Christmas trees from the property and testified about the north property being used as pasture. Margaret Ann Williams, who moved to the area in September 1997, never saw evidence of anyone north of the fence using the property south of the fence.
Pamela Sullivan was formerly married to Robert Shockley and was familiar with the tract now owned by appellant. She testified that she and her former husband ran a dairy farm operation on the north tract until the 1980s. She and her husband then moved to Greenwood and started subdividing and selling the property. The first piece was sold to Tatum, and she did not return to the property on a regular basis after that point. Sullivan had no recollection of the fence on the property.
Tatum testified that he purchased his property from the Shockleys sometime after 2000. He stated that his ten acres were clear-cut timber and described the land as a “veritable nightmare,” as it took two or three weeks of heavy dozer work to clear it. He denied seeing a fence on the property except for one on five acres of part of the property. Tatum recalled approaching appellee to discuss an easement over her property. He stated that she originally refused to allow the easement, but the two later agreed that he could install the water line if he brush hogged her property. He did not recall discussing the fence line or any other boundary with appellee.
Appellant testified that he looked at the property before purchasing it from Tatum and that Tatum’s property appeared to have been recently bulldozed. He stated that he found a fence while measuring the property, but that a person could not walk down the road and see the fence because the fence was in poor condition. When seeing the fence, he opined that it was constructed to keep something on or off the nearby highway. He also noted that he never saw anyone use the property south of the fence and that he never discussed the property line until the instant dispute.
In an order dated March 17, 2006, the circuit court found that appellee established a boundary line by acquiescence and quieted title to the disputed tract in her name. Appellant prosecuted an appeal, but that appeal was dismissed for lack of a final order, as the circuit court failed to address a conversion claim. See Boyster v. Shoemake, CA 06-744 (Ark. App. Mar. 14, 2007) (not designated for publication). The circuit court addressed the claim in its final judgment entered April 24, 2007, and appellant filed a timely notice of appeal.
For his sole point on appeal, appellant contends that the circuit court clearly erred in finding that the fence line was established as the boundary line by acquiescence. He argues that mutual assent to the boundary line is a key component of establishing a boundary line by acquiescence and asserts that appellee failed to prove that there was any mutual assent.
Although we review equity cases de novo on the record, we do not reverse unless we determine that the circuit court’s findings of fact were clearly erroneous. Robertson v. Lees, 87 Ark. App. 172, 189 S.W.3d 463 (2004). A finding offact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. Conner v. Donahoo, 85 Ark. App. 43, 145 S.W.3d 395 (2004). In reviewing the circuit court’s findings, we give due deference to the circuit judge’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
The mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Robertson, supra. However, silent acquiescence is sufficient, as the boundary line is usually inferred from the parties’ conduct over so many years. Warren, supra; Hicks v. Newton, 255 Ark. 867, 503 S.W.2d 472 (1974). A boundary by acquiescence may be established without the necessity of a prior dispute or adverse use up to the line. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972). For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties. Webb v. Curtis, 235 Ark. 599, 361 S.W.2d 87 (1962).
Appellant discusses Robertson, supra, in support of his argument for reversal. In Robertson, we affirmed a finding that the appellant failed to prove a boundary by acquiescence despite testimony that members of his family maintained the disputed property, that no one else claimed the disputed property, and that everyone in appellant’s family considered the fence to be the boundary line. The record contained very little testimony regarding the construction of the fence. While the appellant relied on the appellee’s silence regarding the issue, we noted that the appellee was not silent on the matter, telling another party not to mow the disputed tract. There was also an absence of testimony showing that anyone on the appellee’s side of the property considered the fence to be the property line.
Appellant compares the evidence in the instant case to that in Robertson and contends that appellee failed to present any evidence that he or any of his predecessors in interest consider the fence line to be the boundary. He is mistaken, as appellee testified that Tatum acknowledged the fence as the boundary line. While appellant describes this as “self-serving testimony,” it was within the province of the circuit court to find her credible, and our standard of review requires us to defer to the circuit court’s reliance on her testimony. Conner, supra. In addition to appellee’s testimony that Tatum acknowledged the fence as the boundary line, testimony from appellee and her witnesses established that no one north of the fence used the property south of the fence and that property north of the fence was pasture, while property south of the fence was woods. Appellee presented sufficient evidence to establish that appellant and his predecessors in interest recognized the fence line as the boundary between the two properties.
Because the circuit court did not err in finding that appellee established that the fence line between the two properties was the boundary by acquiescence, we affirm. However, the trial court order in this case lacks a specific description of the boundary line. A final order in a boundary line dispute must describe the boundary line between disputing land owners with sufficient specificity that it may be identified solely by reference to the decree. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997); Penland v. Johnston, 97 Ark. App. 11, 242 S.W.3d 635 (2006). In Jennings v. Buford, 60 Ark. App. 27, 35, 958 S.W.2d 12, 16 (1997), we noted that the decree there lacked a specific description on the boundary line in question, but we noted that the line described in that case was specifically described as “the meandering fence ‘reflected by the Askew survey.’ ” We held that the lack of specificity in the order was not reversible error, but was a mere omission or oversight that could be corrected pursuant to then Rule 60(a) of the Arkansas Rules of Civil Procedure. Accordingly, we granted leave to the lower court to amend the decree by adding a more specific description of the boundary line between the parties’ land. We recently did the same in Adams v. Atkins, 97 Ark. App. 328, 249 S.W.3d 166 (2007), when the order identified the boundary line as reflected in the Higby survey as the true and correct boundary line between the properties in question. In the present case, the order also lacks a specific description of the boundary between the properties, but the order clearly references a survey identifying the established boundary line as the fence on the south side of the old Slaytonville Road. As we did in Jennings and Adams, we grant leave to the circuit court to amend the decree by adding a more specific description of the boundary line between the parties’ land.
Affirmed and remanded with instructions.
Pittman, C.J., Gladwin, Robbins, and Bird, JJ., agree.
Hart, J., dissents.
Now Rule 60(b). See Rule 60, Addition to Reporter’s Notes, 2000 Amendment. | [
-11,
-10,
-35,
45,
42,
96,
57,
-72,
75,
-105,
119,
87,
-17,
-64,
24,
35,
-21,
29,
17,
40,
-61,
-78,
19,
-64,
118,
-13,
-53,
85,
49,
74,
-12,
87,
73,
-79,
-54,
117,
102,
34,
-83,
90,
-58,
7,
-101,
77,
-47,
-62,
60,
35,
18,
78,
53,
-81,
-29,
44,
25,
-61,
40,
46,
-5,
41,
-128,
120,
-66,
31,
62,
7,
-111,
52,
-104,
1,
106,
40,
-112,
49,
0,
-8,
115,
54,
-110,
116,
15,
-71,
8,
38,
98,
1,
93,
-1,
44,
-103,
46,
126,
-103,
38,
-14,
88,
107,
0,
-100,
-75,
116,
66,
13,
124,
-28,
69,
92,
72,
-92,
-26,
-108,
-95,
-115,
-76,
-116,
71,
-57,
37,
-77,
81,
-49,
-18,
94,
70,
17,
-101,
-113,
-102
] |
D.p. Marshall Jr., Judge.
The parties own adjoining tracts of land in rural Van Burén County. Global Road crosses the Robertses’ property, and Mr. Rhodes’s and Green Bay’s use of the road has caused friction. The Robertses filed this suit alleging that Mr. Rhodes, Green Bay, and a John Doe had destroyed trees while widening the road. The circuit court concluded that the parties settled the litigation and entered an “Agreed Decree,” which dismissed all claims and counterclaims against all the parties. The Robertses appeal. They argue that no final settlement agreement was ever reached or, in the alternative, that the decree contains terms to which they never agreed. We reverse and remand because we are firmly convinced that the parties never reached a mutual agreement on the settlement terms. Ark. R. Civ. P. 52; Country Corner Food & Drug, Inc. v. Reiss, 22 Ark. App. 222, 227, 737 S.W.2d 672, 674 (1987) (standard of review).
About a week before a scheduled trial, the Robertses’ attorney sent all counsel a two-page letter dated 1 July 2005 proposing settlement terms. The proposal offered Green Bay and Mr. Rhodes a thirty-foot easement to be delineated in a survey, gave the Robertses full access to Global Road plus an easement across Green Bay’s land in a connecting road to State Highway 16, and prohibited interference with the Robertses’ petition to remove Global Road from the county-road system. The proposal also called for gates on the road and for Mrs. Rhodes, who was not a party to the suit, to agree to the settlement in writing. The circuit court then removed the case from the trial docket. The record contains no contemporaneous explanation of why. When the parties later fell out about whether a settlement had been reached, the lawyers for Mr. Rhodes and Green Bay said that the case was not tried because the parties had settled, while the lawyer for the Robertses said that the parties had agreed to agree but not come to final terms. After the trial date came and went, a survey was done and the lawyers exchanged letters about Green Bay’s desire for an easement wider than thirty feet at several points along the road.
A few months later, Mr. Rhodes expressed frustration with the delay, accused the Robertses of backing out of the settlement, and moved to enforce it. The motion did not specify the parties’ terms, but stated that they had reached a settlement shortly before the trial date. Green Bay joined the motion to enforce. The Robertses opposed the motion, stating that some but not all issues had been resolved before trial and no final settlement had yet been reached. The Robertses then submitted a proposed decree to all counsel that tracked (with some variation) the July 1st letter. Mr. Rhodes’s counsel rejected it outright as “not even close to what we agreed to.” Green Bay’s counsel later drafted a decree that differed in many respects from the July 1st letter. This decree created mutual easements in two “offshoots” from Global Road, gave the Robertses a “right of use” rather than an easement along Green Bay’s road, attempted to describe two places on Global Road where the easement would be wider than thirty feet, and contained no signature line for Mrs. Rhodes.
In due course, the circuit court held a hearing on the motion to enforce. No one testified. All the lawyers, as officers of the court, explained what had happened. Counsel for Green Bay and Mr. Rhodes said there was a settlement. Counsel for the Robertses said that they tried to reach a final settlement but could not do so. Over two objections from the Robertses, the court received into evidence the July 1st letter proposal, the parties’ correspondence, and the proposed decrees. The Robertses did not object to the lack of a sponsoring witness for these documents or challenge their authenticity. Instead, they argued (1) that their admission offended Rule 408’s bar against evidence of settlement negotiations, and (2) that the other parties — despite outstanding discovery and a motion to compel disclosure of what exhibits they planned to offer at the hearing — had refused to disclose this proposed evidence.
We reject the Robertses’ contentions that the court abused its discretion by considering the documents about settlement. Gailey v. Allstate Ins. Co., 362 Ark. 568, 575, 210 S.W.3d 40, 45 (2005) (standard of review). Arkansas Rule of Evidence 408 prohibits using offers of compromise to prove liability or the invalidity or amount of a claim. McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 332-33, 749 S.W.2d 653, 657 (1988). The Rule, however, allows evidence of settlement negotiations to prove other things. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 437, 834 S.W.2d 136, 141 (1992). Mr. Rhodes and Green Bay did not offer the documents on issues related to liability. The issue at the hearing was whether the parties had agreed to settle, and all these documents were competent proof on that issue. We do not condone Mr. Rhodes’s and Green Bay’s failure to tell the Rob-ertses about their planned exhibits before the hearing, but we see no reversible error on this point. Like the circuit court we discern no prejudice from this omission. The Robertses were part of this back and forth about all settlement details, and the other parties’ likely exhibits about those negotiations could not have been a surprise.
On the merits, we conclude that the circuit court clearly erred because it made a contract for these parties when they had tried but failed to make one. Our law favors and encourages settlement agreements. Williams v. Davis, 9 Ark. App. 323, 325, 659 S.W.2d 514, 515 (1983). But, like any other contract, the terms of a settlement agreement must be definitely agreed upon and reasonably certain. Key v. Coryell, 86 Ark. App. 334, 341, 185 S.W.3d 98, 103 (2004). A mutual agreement, as evidenced by objective indicators, is essential. See generally Ward v. Williams, 354 Ark. 168, 180, 118 S.W.3d 513, 520 (2003). This element is missing here.
The record contains no writings, testimony, or agreements in open court showing that the parties mutually assented to all material settlement terms in the “Agreed Decree.” Green Bay’s and Mr. Rhodes’s counsel stated at the hearing that they accepted the July 1st proposal from the Robertses’ counsel. Lawyers’ statements that a settlement exists, however, are insufficient in the face of denials by opposing counsel and a lack of testimonial or other competent evidence. Williams, 9 Ark. App. at 325-26, 659 S.W.2d at 515-16. While Green Bay and Mr. Rhodes contend that they accepted the July 1st letter, which was in evidence, Mr. Rhodes rejected unequivocally the proposed decree based on that letter. Moreover, even if the July 1st proposal was accepted, the circuit court’s “Agreed Decree” did not comport with the letter’s terms. Instead, the “Agreed Decree” tracked the proposed decree drafted by Green Bay’s lawyer, adding some provisions to the Robertses’ proposal and eliminating others.
We are left with the firm conviction that the circuit court clearly erred by entering the decree. Country Corner, 22 Ark. App. at 227, 737 S.W.2d at 674. We therefore reverse and remand for trial.
Robbins and Griffen, JJ., agree. | [
-15,
-19,
-80,
108,
-56,
32,
56,
-54,
83,
-77,
97,
83,
-83,
-52,
16,
57,
34,
15,
116,
107,
83,
35,
53,
66,
-14,
-77,
-45,
-51,
57,
-51,
60,
-48,
76,
8,
-118,
-35,
70,
98,
-51,
92,
-58,
4,
-117,
100,
-63,
67,
20,
35,
16,
79,
53,
-82,
-15,
-83,
57,
103,
108,
44,
15,
-83,
-48,
120,
-71,
7,
127,
7,
-127,
36,
-120,
0,
90,
122,
-112,
53,
0,
-88,
119,
54,
-105,
116,
69,
-103,
8,
-90,
99,
33,
64,
-50,
-8,
-120,
38,
-4,
13,
39,
-94,
8,
-61,
3,
-74,
-76,
88,
86,
6,
122,
-10,
13,
29,
108,
7,
-18,
-46,
-127,
-99,
-68,
29,
3,
-29,
7,
48,
117,
-49,
-14,
93,
70,
120,
-45,
31,
-79
] |
David M. Glover, Judge.
Appellant, Mamo Transportation, Inc., appeals the Board of Review’s decision that it is required to pay unemployment taxes on the drivers it engages because it failed to meet the three-prong test set forth in Arkansas Code Annotated section ll-10-210(e) to determine if its drivers are independent contractors. The Board of Review found that Mamo met the first prong but did not meet the second prong, and because of that it was unnecessary to address the third prong. On appeal, Mamo argues that it met the criteria of the second prong. We affirm the Board of Review’s determination that Mamo did not meet the second prong and is therefore hable for payment of unemployment taxes.
Arkansas Code Annotated section ll-10-210(e) (Supp. 2005) provides:
(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:
(1)Such individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his or her contract for the performance of service and in fact; and
(2)The service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(3)The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
Overview
Mamo provides “drive-away” services for its customers throughout all forty-eight contiguous states and into Canada. Mamo contracts with drivers to deliver large vehicles to its customers, i.e., tractor-trailers, buses, and motor homes, where conventional hauling is not financially efficient. Mamo, which is headquartered in Indiana and has dispatch offices in Indiana, Pennsylvania, North Carolina, and Arkansas, has a list of approved drivers. An approved driver calls one of the dispatch offices when he wants to work to determine if there is a trip he wants to take. Mamo gives the driver the amount it is willing to pay per mile for the trip, and the driver is free to attempt to negotiate a better deal. If the driver and Mamo are able to agree on a price, the driver makes the trip. Mamo’s profits are derived from the difference between what the customer pays Mamo and what Mamo pays the driver. Mamo does not have exclusive contracts with any driver; testimony indicated that eighty-eight percent of the drivers had at least two other carrier contracts in addition to Mamo. There was testimony that Mamo does not train its drivers; that the drivers are responsible for paying their own taxes; that the drivers pay their own expenses, including meals, lodging, fuel for the vehicle being delivered, and transportation home after delivery; that drivers choose how much to work; and that drivers are responsible for the first $1000 in damages if there is an accident, with Mamo’s liability insurance paying the balance owed. Three Mamo drivers testified that they considered themselves to be independent contractors.
Case History
This case arose when one of Mamo’s drivers, Sylvia Jones-Alien, filed for unemployment benefits after Mamo cancelled her contract on the basis that she was a high-risk driver. Jones-Alien was making her third trip for Mamo during her first ninety days under contract when she caused over $9,000 in damages to a vehicle by driving it under a bridge that was too low for the vehicle. When she applied for unemployment benefits, Jones-Alien identified herself as an independent contractor. Mamo agreed with this designation. However, the Board of Review found that Mamo was not exempt from paying Arkansas unemployment taxes because it did not meet all three prongs of Arkansas Code Annotated section ll-10-210(e). Mamo now brings this appeal.
Discussion
In American Transportation Corporation v. Director, 39 Ark. App. 104, 106, 840 S.W.2d 198, 199 (1992) (citations omitted), our court held:
In order to obtain the exemption contained in the Act, it is necessary that the employer show to the satisfaction of the Director that the requirements of all three subsections have been met. Therefore, if there is sufficient evidence to support a finding that any one of the three requirements were not met, the case must be affirmed. In reviewing decisions of the Board of Review, this court views the evidence in the fight most favorable to the Board’s findings, giving them the benefit of every legitimate inference that can be drawn from the testimony, and will affirm the determination of the Board if its findings are supported by substantial evidence. The issue to determine is not whether the evidence would support some different finding, but whether it supports the finding actually reached by the Board.
In the present case, Mamo does not make the argument that its drivers are not paid wages; therefore, the only issue on appeal is whether Mamo meets the second prong of section ll-10-210(e), whether the service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed. This second prong itself is a two-part alternative test — the test is met if the service is performed either outside the usual course of business or if the service is performed outside of all the places of business of the enterprise for which the service is performed.
In Home Care Professionals of Arkansas, Inc. v. Williams, 95 Ark. App. 194, 235 S.W.3d 536 (2006), this court held that the appellant, HCP, was not exempt from paying unemployment taxes because it had failed to satisfy subparagraph two of the statutory exemption. HCP maintained a list of caregivers who provided home-care services for the elderly; when it first began, HCP provided direct home-care services for the elderly, but it had eventually evolved into a home-care referral service. Clients contacted HCP and stated what home-care services were needed; HCP collected a fee for the service up front and then found a caregiver willing to perform the necessary services. The client and caregiver negotiated a schedule and the terms of employment; once the caregiver completed the services and turned in a time sheet, HCP distributed the funds collected from the client less its forty percent referral fee. Caregivers on HCP’s referral list signed independent-contractor agreements with HCP, and caregivers were responsible for their own transportation and supplies. After a schedule was arranged between the client and the caregiver, HCP administered the schedule, including scheduling replacements if the caregiver was unable to work. HCP’s caregivers were not required to be exclusively listed with HCP.
This court, in affirming the Board’s decision that HCP had failed to meet the second prong of the independent-contractor test, quoted the Board’s analysis of the second prong of that test:
In the instant case, caring for the elderly is necessary to [HCP’s] business, and thus providing in-home services is within [HCP’s] usual course of business. Since the evidence does not establish that [HCP] receives a monetary benefit when a simple refenal is made, but only when a service by a caregiver is performed for a client, a finding that providing in-home services is within [HCP’s] usual course of business is particularly appropriate.
In regard to the place of business aspect of the second part of the test, an employer’s place of business has been found to include not only the location of a business’s office, but also the entire area in which a business conducts business. See Missouri Association of Realtors v. Division of Employment Security, 761 S.W.2d 660 (Mo. App. 1988); Employment Security Commission of Wyoming v. Laramie Cabs, Inc., 700 P.2d 399 (Wyo. 1985); and Vermont Institute of Community Involvement, Inc., v. Department of Employment Security, 436 A.2d 765 (Vt. 1981). More specifically, the representation of an entity’s interest by an individual of a premises renders the premises a place of the employer’s business. See Carpetland, [Carpetland U.S.A. v. Illinois Dep’t of Employment Security, 206 Ill. 351, 776 N.E.2d 166 (Ill. 2002)]. In the instant case, the caregivers represent [HCP’s] interest on the client’s premises, not just in a tangential fashion, (e.g., satisfactory work by the caregiver may result in future referral), but in the most direct sense, that of performing the very service by which [HCP] profits.
95 Ark. App. at 198-99, 235 S.W.3d at 540-41. The Board determined that the caregivers represented HCP’s interest on the clients’ premises, thereby making the clients’ premises a place of business. This court adopted that determination.
Other jurisdictions have reached the same conclusion. In O’Hare-Midway Limousine Service, Inc. v. Baker, 596 N.E. 2d 795 (1992), the Appellate Court of Illinois rejected O’Hare-Midway’s argument that the limousine drivers performed their work outside its usual course of business. The appellate court held that while the driving did not take place at the office, the usual course of a limousine dispatching service was not limited to office space and because the drivers represented the interests of O’Hare-Midway whenever they picked up passengers, the usual course of business was on the roadways traveled. (Emphasis added.) Likewise, in Employment Security Commission of Wyoming v. Laramie Cabs, Inc., 700 P.2d 399 (1985), cited in Home Care Professionals, supra, the Supreme Court of Wyoming held that the essence of the taxi cab business was conducted in cabs between the customer’s origin and destination, not in the company office, and the supreme court concluded that the vehicles that provided the service had to be considered a place of business of the taxicab company. The Supreme Court of North Dakota determined in Midwest Property Recovery, Inc. v. Job Service of North Dakota, 475 N.W.2d 918 (1991), that “the places of enterprise” of Midwest, who was in the business of repossessing vehicles, necessarily extended to where the repossessions took place.
In the present case giving the statutory language its plain meaning and viewing the evidence in the light most favorable to the Board’s findings, we hold that the Board’s decision is supported by substantial evidence. Mamo provides drivers to transport vehicles for its customers. As in Home Care Professionals, supra, Mamo does not receive a monetary benefit until the service, here, driving and delivering the vehicle, is performed; therefore, such delivery is in the usual course of business. Regarding the “place of business” aspect of the test, by comparison to O’Hare-Midway Limousine, supra, and Laramie Cabs, supra, the roadways are where services are performed, and the drivers represent Mamo’s interests on those roadways.
Affirmed.
Pittman, C.J., Griffen, and Marshall, JJ., agree.
Hart and Miller, JJ., dissent. | [
82,
122,
-32,
-68,
40,
96,
26,
26,
85,
-117,
55,
83,
-81,
-94,
21,
57,
-13,
125,
-48,
106,
116,
51,
65,
98,
80,
-77,
-31,
-55,
-103,
107,
-28,
92,
78,
33,
-54,
-43,
70,
81,
76,
88,
110,
3,
-117,
121,
-7,
-59,
52,
43,
34,
31,
49,
-116,
-65,
60,
24,
-62,
-20,
46,
121,
-85,
-63,
-16,
-69,
-105,
103,
5,
-111,
68,
-70,
15,
-40,
46,
-112,
57,
96,
-40,
114,
-74,
-96,
-60,
75,
-103,
9,
34,
99,
-127,
29,
-19,
-12,
-120,
38,
-34,
15,
-123,
-8,
57,
27,
7,
-97,
-44,
90,
22,
12,
-2,
-10,
69,
31,
109,
9,
-113,
-78,
-95,
-115,
-28,
-108,
19,
-17,
-58,
-112,
113,
-20,
-14,
92,
6,
51,
31,
-105,
-80
] |
John Mauzy Pittman, Chief Judge.
An unknown thief took a new truck from the lot of appellant Bull Motor Company (BMC) and drove it for a short period of time before the truck was recovered and returned to BMC. BMC subsequently sold the truck as “new” to appellee Jason Murphy without disclosing this history. Upon discovering the true history, Murphy filed suit. A jury awarded Murphy $7,000 in damages. In this appeal from that verdict, BMC raises four points for reversal. We affirm.
Background
On December 8, 2004, a thief stole a 2005 truck from BMC. The truck was recovered by the police ninety minutes later and had been driven forty miles. The truck was returned to BMC’s lot. On January 4, 2005, Murphy purchased the truck as a “new” truck for $33,495. The salesman, Bo Henderson, was unaware that the truck had been stolen at the time of the sale and did not disclose the information to Murphy.
On March 10, 2005, Murphy filed suit, alleging that BMC breached the sales contract by not disclosing the prior theft of the truck. The complaint also asserted that the vehicle was worth $8,495 less because it had been stolen and driven by the thief. BMC denied the material allegations of the complaint and asserted that Murphy had not suffered any damages. BMC later moved for summary judgment, contending that Murphy suffered no damages in that he received a “new” vehicle because Ark. Code Ann. § 23-112-103(22) (Repl. 2004) defines a “new” vehicle as one whose title has not been transferred to an ultimate purchaser. The circuit court denied the motion, and the case proceeded to trial.
The Evidence
At trial, Murphy testified that he wanted a “new” vehicle — one that had not been stolen or wrecked. This was important to him, he said, because he was looking for dependable transportation to work and one would not know how the thief drove the vehicle. He opined that the vehicle he purchased was “used,” not “new,” because it had been stolen and driven by the thief. Murphy stated that, when he learned that the truck had been stolen, he called BMC and asked for another “new” vehicle but that they refused the request. At that time, he had driven the truck approximately 1,000 miles. Over BMC’s objection, he testified that the rear end had to be replaced at 18,000 miles. He acknowledged that he did not know whether the thief s actions had any effect on the rear end. Murphy stated that he would not have bought the truck for the same price if he had known it to have been stolen. He said that the price would have had to be reduced some $8,000 to $10,000 before he bought the stolen truck. He also said that it did not matter how long the thief had the truck or how far it was driven because it was still a “used” truck. On cross-examination, he acknowledged that there was nothing wrong with the truck’s interior or exterior or how it drove when he purchased it. He also said that the knowledge that the truck had been stolen had weighed on his mind.
Tony Bull, owner of BMC, testified that, after the truck was recovered, it was thoroughly inspected and tested with no damage found. He also said that he was sure that Bo Henderson did not know that the track had been stolen and explained that it was simply a mistake that it was not disclosed to Murphy. He said that there was no effort to deceive Murphy and that he tried to rectify the situation by offering to extend the track’s warranty. He opined that, if the thief did any damage to the track, it would have manifested itself within the first 2,000 miles. He did not know how the thief drove the vehicle but further opined that the track’s value was not affected by being driven for forty miles by the thief. Bull stated that the track’s being driven by the thief does not characterize it as a “used” vehicle because a “new” vehicle is one that has never been registered or titled. On cross-examination, Bull was unable to state how much the vehicle’s value would be reduced if Murphy had taken the vehicle and driven it for one day before returning it.
Bo Henderson testified that he was unaware of the truck’s having been stolen at the time he sold it to Murphy and asserted that he would have disclosed that fact to Murphy had he known it. According to Henderson, there was nothing in the truck’s record to indicate that it had been stolen because it had not been damaged. He also said that the average customer would select the truck that had not been stolen and that it would probably have been necessary to reduce the price in order to sell the stolen truck. According to Henderson, an appropriate reduction would be $1,000 to $1,500.
Dean Sides, a car dealer in Newport, testified that a “new” vehicle is one that has not been sold or titled. He opined that the theft would not reduce the value of the truck. He described the thiefs action as “not much more than a test drive.” He also allowed that a dealer may have to discount the price because of the vehicle’s tarnished reputation. He said that it would be something difficult to value.
James Smith, BMC’s service manager, testified that he tested Murphy’s truck and did not find any problems. He asserted that any damage to the rear end of the truck would have immediately been discovered. He acknowledged that the computer did not check the rear differential and that there could be damage that went undiscovered.
Over BMC’s objection, the circuit court gave AMI 2412 concerning ambiguity in the meaning of the term “new vehicle” and that it was the jury’s job to determine what the parties meant by that term. The jury was also instructed on the statutory definitions of the term “new vehicle” and “used vehicle.” The jury returned a verdict signed by ten jurors finding in favor of Murphy and awarding him $7,000 in damages. BMC filed a motion for new trial or judgment notwithstanding the verdict, asserting that there was no substantial evidence to support the award of damages or that BMC did not sell Murphy a “new motor vehicle.” The motion for new trial was based on asserted error in allowing Murphy to testify that the truck needed axle repairs at 18,000 miles; that the testimony that the truck decreased in value by $8,495 was speculative; and that the damages award of $7,000 was against the preponderance of the evidence. The circuit court denied the motion. Judgment was entered on the jury verdict, and the circuit court awarded Murphy attorney’s fees of $4,164. This appeal followed.
Arguments on Appeal
In its first point, BMC argues that the circuit court erred in denying its motion for summary judgment, its motion for a directed verdict, and its motion for judgment notwithstanding the verdict because the truck was, as a matter of law, “new.”
We cannot address the summary-judgment issue. The denial of a motion for summary judgment is not an appealable order; even after there has been a trial on the merits, the denial order is not subject to review on appeal. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).
BMC’s argument is that the meaning of the phrase “new vehicle” is determined, as a matter of law, by the statutory definition contained in section 23-112-103(22). We disagree. It is axiomatic that the laws in force when and where a contract is made and to be performed enter into and form part of the contract. This rule is limited, however, to laws that are applicable to the contract. Union Indem. Co. v. Forgey & Hanson, 174 Ark. 1110, 298 S.W. 1032 (1927); see Wing v. Forest Lawn Cemetery Ass’n, 15 Cal. 2d 472, 101 P.2d 1099 (1940); Williston on Contracts § 3019 (2007). Arkansas Code Annotated section 23-112-103(22) is not applicable to an agreement of sale between an automobile dealer and a consumer. That statute is part of the Arkansas Motor Vehicle Commission Act, which was expressly intended to create an administrative agency to license persons and entities involved in the manufacture, distribution, and sale of motor vehicles so as to “[p]revent frauds, unfair practices, discrimination, impositions, and other abuses upon the citizens of Arkansas.” Ark. Code Ann. § 23-112-102(b)(l).
The purposes for the differing requirements are many, but chief among them is to prevent used auto dealerships from operating as fly-by-night businesses that engage in the sort of fraud commonly associated with such concerns. See Ark. Code Ann. § 23-112-601. It is instructive in this context to note that the definition of “used motor vehicle” in § 23-112-602(8) includes not only those vehicles that previously have been sold and titled, but also any vehicle that has been “so used as to have become what is commonly known as a secondhand or previously owned motor vehicle.” Thus, the Act itself contemplates a vehicle that has never been titled but is nevertheless “secondhand” by virtue of the use or abuse to which it has been subjected — like the vehicle in this case.
The purpose of the rule incorporating applicable law into every contract is to comply with the federal constitutional prohibition against the enactment of laws impairing contractual obligations, not to impose by law a particular meaning to a term used in the agreement. See Ellison v. Tubb, 295 Ark. 312, 749 S.W.2d 650 (1988); Robards v. Brown, 40 Ark. 423 (1883).
Section 201 of the Restatement (Second) of Contracts makes this plain. It states:
(1) Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.
(2) Where the parties have attached different meanings to a promise or agreement or a term thereof, it is interpreted in accordance with the meaning attached by one of them if at the time the agreement was made
(a) that party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party; or
(b) that party had no reason to know of any different meaning attached by the other, and the other had reason to know the meaning attached by the first party.
(3) Except as stated in this Section, neither party is bound by the meaning attached by the other, even though the result may be a failure of mutual assent.
The Comment to this section deals with the precise situation that is before us in this case:
a. The meaning of words. Words are used as conventional symbols of mental states, with standardized meanings based on habitual or customary practice. Unless a different intention is shown, language is interpreted in accordance with its generally prevailing meaning. See § 202(3). Usages of varying degrees of generality are recorded in dictionaries, but there are substantial differences between English and American usages and between usages in different parts of the United States. Differences of usage also exist in various localities and in different social, economic, religious and ethnic groups. All these usages change over time, and persons engaged in transactions with each other often develop temporary usages peculiar to themselves. Moreover, most words are commonly used in more than one sense.
b. The problem of context. Uncertainties in the meaning of words are ordinarily gready reduced by the context in which they are used. The same is true of other conventional symbols, and the meaning of conduct not used as a conventional symbol is even more dependent on its setting. But the context of words and other conduct is seldom exactly the same for two different people, since connotations depend on the entire past experience and the attitudes and expectations of the person whose understanding is in question. In general, the context relevant to interpretation of a bargain is the context common to both parties. More precisely, the question of meaning in cases of misunderstanding depends on an inquiry into what each party knew or had reason to know, as stated in Subsections (2) and (3). See § 20 and Illustrations. Ordinarily a party has reason to know of meanings in general usage.
c. Mutual understanding. Subsection (1) makes it clear that the primary search is for a common meaning of the parties, not a meaning imposed on them by the law. To the extent that a mutual understanding is displaced by government regulation, the resulting obligation does not rest on “interpretation” in the sense used here. The objective of interpretation in the general law of contracts is to carry out the understanding of the parties rather than to impose obligations on them contrary to their understanding: “the courts do not make a contract for the parties.” Ordinarily, therefore, the mutual understanding of the parties prevails even where the contractual term has been defined differently by statute or administrative regulation. But parties who used a standardized term in an unusual sense obviously run the risk that their agreement will be misinterpreted in litigation.
d. Misunderstanding. Subsection (2) follows the terminology of § 20, referring to the understanding of each party as the meaning “attached” by him to a term of a promise or agreement. Where the rules stated in Subsections (1) and (2) do not apply, neither party is bound by the understanding of the other. The result may be an entire failure of agreement or a failure to agree as to a term. There may be a binding contract despite failure to agree as to a term, if the term is not essential or if it can be supplied. See § 204. In some cases a party can waive the misunderstanding and enforce the contract in accordance with the understanding of the other party.
The generally prevailing meaning of a “new” vehicle does not include a vehicle that has been stolen. See Greiner Motor Co. v. Sumpter, 244 Ark. 736, 427 S.W.2d 8 (1968). Here, BMC had reason to know this, and Murphy had no reason to know that the definition of a new vehicle, contained in the Arkansas Motor Vehicle Commission Act for purposes of distinguishing between new and used car dealers, provided otherwise.
BMC’s second point is that the circuit court erred in denying its motion for summary judgment, its motion for a directed verdict, and its motion for judgment notwithstanding the verdict because Murphy failed to prove the difference in the fair market value of the truck as represented and as received.
Again, we cannot consider the summary-judgment issue. BMC’s argument is that the truck was not damaged and, therefore, Murphy’s testimony as to the value of the truck being decreased was pure speculation. Here, contrary to BMC’s argument, there was proof of damage to the vehicle other than in Murphy’s mind. BMC witness Dean Sides testified that a vehicle that had been stolen and returned to the dealer undamaged would nevertheless have a tarnished reputation and that a reduction in price may be necessary to sell the vehicle. Bo Henderson testified that a reduction in price of $1,000 to $1,500 would be appropriate. Murphy testified that, in his opinion, the value of the truck had been diminished by between $8,000 and $10,000 by being driven by the thief. It is well-settled Arkansas law that the owner of personal property is qualified to give an opinion as to its value. Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984). No special training or occupation is necessary to qualify a witness to estimate values. Naples Rest., Inc. v. Coberly Ford, 259 Cal. App. 2d 881, 66 Cal. Rptr. 835 (1968). The sales contract established the fair market price of the truck and Murphy’s testimony established the difference in the actual value at the time of purchase. Therefore, the jury could properly award Murphy $7,000 in damages.
For its third point on appeal, BMC contends that the circuit court erred in allowing Murphy to testify that the rear end on the truck had to be replaced at 18,000 miles. Murphy acknowledged that he did not know if the problem was caused by the thief. BMC objected to Murphy’s testimony on the basis that it was irrelevant and that there was no proof that the problem was caused by the thief s actions. The circuit court overruled the objection, finding the testimony relevant. The standard of review on admission of evidence is abuse of discretion. FMC Corp., Inc. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005).
The circuit court only ruled that the evidence was relevant; it did not address the other grounds of BMC’s objection. We believe that the testimony was relevant because it showed the doubts Murphy had about the vehicle and why, in his opinion, the value was reduced from the contract price. Second, BMC also addressed the subject in its examination of its own witnesses, Tony Bull, Dean Sides, and James Smith. Here, BMC’s witnesses discussed the likelihood of a vehicle’s rear end needing replacement at 18,000 miles. In such circumstances, there is no prejudice. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001); Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989).
BMC’s final point is that the circuit court erred in instructing the jury based on AMI 2412, concerning an ambiguity in a contract term. Our courts have consistently held that a party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. See, e.g., Byme, Inc. v. Ivy, 367 Ark. 451, 241 S.W.3d 229 (2006).
Here, the jury was instructed as to AMI 2412 as follows:
The parties dispute the meaning of the term “new vehicle” in their contract. It is your duty to interpret the contract to give effect to what the parties intended when they made their agreement. In determining the meaning of the language, you must take into consideration the language of the contract, the circumstances surrounding the making of the contract, the subj ect of the contract, the purpose of the contract, the situation and relation of the parties at the time the contract was made, the parties’ subsequent course of performance. You should give the words of the contract their plain, ordinary, and usual meaning, unless it is clear that certain words were intended to be used in a technical sense.
The jury was also instructed on the statutory definitions of “new” and “used” vehicles. Because we have held that the definition of the term “new vehicle” is not determined by reference to the statute but, rather, by the parties’ intentions, the circuit court properly gave the disputed instruction because the jury was told to consider the circumstances in making the contract, that is, the fact that the truck was first driven by a thief for some forty miles prior to being sold to Murphy, to determine whether Murphy received a “new” truck.
Affirmed.
Gladwin, Bird, Vaught, and Baker, JJ., agree.
Robbins and Heffley, JJ., agree in part; dissent in part.
Griffen and Marshall, JJ., dissent.
The dissenting judge’s disagreement is founded on his mistaken notion that the Arkansas Motor Vehicle Commission Act is “applicable law” in the context of this case. His position is misguided. The reason that a “new vehicle” is defined in the Act is not to regulate sales by motor vehicle dealers to third parties, but instead to distinguish between “new motor vehicle dealers” and “used motor vehicle dealers.” Both types of dealers must be licensed, and the applicable licenses have requirements that differ. Compare Ark. Code Ann. §§ 23-112-302 and 23-112-607.
This case also held that the statutory definition of a “new” vehicle was not controlling where the vehicle had been stolen from the dealer’s lot prior to the sale. | [
80,
-24,
72,
44,
40,
96,
42,
-102,
97,
-123,
117,
-109,
-89,
-62,
5,
107,
-26,
125,
101,
66,
-12,
-93,
67,
-29,
-46,
-106,
-69,
-59,
-77,
75,
100,
116,
78,
32,
-54,
93,
36,
72,
-83,
92,
-50,
2,
59,
116,
-7,
65,
36,
-88,
4,
7,
65,
-115,
64,
46,
25,
79,
109,
40,
-21,
61,
-47,
-7,
-31,
5,
127,
18,
-95,
36,
-98,
41,
-8,
8,
-108,
49,
48,
72,
115,
-74,
-128,
100,
107,
-119,
-120,
32,
114,
2,
28,
-59,
-12,
-68,
47,
-68,
31,
-90,
-40,
24,
11,
101,
-105,
-100,
121,
18,
76,
-4,
-10,
21,
31,
100,
5,
-49,
16,
-95,
109,
98,
-116,
9,
-1,
-105,
-78,
113,
-52,
-30,
93,
7,
122,
-101,
7,
-41
] |
David M. Glover, Judge.
S.F. and D.F. have appealed from a juvenile court’s adjudication order finding their adopted son to be dependent-neglected. They raise a novel legal argument on appeal — that they were not at fault because they followed an attorney’s advice before they placed the child in harm’s way. We affirm the circuit court’s decision.
Appellants are the biological grandparents of G.A., born on May 14, 2005, to their daughter, K.A., and her husband, T.A. The court found G.A. to be dependent-neglected on October 3, 2005, as a result of life-threatening abuse that he suffered while in his biological parents’ care. He suffered multiple retinal hemorrhages, multiple brain hemorrhages (resulting in permanent damage), an injury to his clavicle, and a fracture of his tibia. With the biological parents’ consent, appellants adopted G.A. on August 1, 2006, and the juvenile case was closed.
In February 2007, DHS opened another investigation because appellants had returned the child to his biological parents’ home. DHS filed a dependency-neglect petition on March 8, 2007. Appellants responded that they had relied on the advice of counsel and stated that the court’s earlier findings that the child had been abused were erroneous.
A hearing was held on May 11, 2007. Appellants stipulated that the child had been in K.A.’s care for a period of time and in the presence of T.A., who was in the military and in Iraq at the time of trial. They argued that they had relied upon the advice of the biological parents’ attorney in returning the child to his biological mother. The attorney testified that he had represented K.A. and T.A. in the juvenile case and that he had advised them, after the adoption, that they could legally have contact with the child if appellants agreed. He could not remember whether appellants were present during those conversations. He admitted that his legal advice was erroneous. See Arkansas Code Annotated section 9-27-353 (Supp. 2007), which provides in relevant part:
(e)(1) It shall be the duty of every person granted custody, guardianship, or adoption of any juvenile in a proceeding pursuant to or arising out of a dependency-neglect action under this sub-chapter to ensure that the juvenile is not returned to the care or supervision of any person from whom the child was removed or any person the court has specifically ordered not to have care, supervision, or custody of the juvenile.
(2) This section shall not be construed to prohibit these placements if the person who has been granted custody, guardianship, or adoption obtains a court order to that effect from the juvenile court that made the award of custody, guardianship, or adoption.
(3) Failure to abide by subdivision (e)(1) of this section is punishable as a criminal offense pursuant to § 5-26-502(a)(3).
K.A. testified that her parents had returned the child to her in August 2006 and that T.A. had stayed at their home while he was on temporary leave. She said that her attorney had advised her, “after the adoption was final, that we were through with him and that T. could basically walk up to the DHHS with G. and wave him around.” She said that her parents were present on some of the occasions when her attorney gave her legal advice.
S.F. stated that she had not known she was doing anything wrong by permitting K.A. to take care of G.A. because she had relied on the attorney’s advice. She also said that, although she would abide by the court’s orders, she did not believe that K.A. or T.A. had actually harmed the child.
Emily Hudkins, an investigator with DHS, testified that, when she first talked to appellants in February 2007 about the child’s location, they were dishonest and would not admit that he was with K.A.; eventually, they admitted that they had given him to her. She stated that she was involved in the previous juvenile-court case, during which she advised appellants that they could not return the child to T.A. or K.A.
Kay Higginbotham, a caseworker with DHS, testified that, at a “staffing” on June 23, 2006, she discussed appellants’ decision to adopt the child and made it clear that K.A. could only have supervised visitation with G.A.; that he could never be returned to her; and that TA. could have no contact with him. She said that appellants knew that the child could not go back to his biological parents and that they did not indicate that they planned to return him.
Appellants’ attorney urged the court to interpret the juvenile code as permitting a child to be adjudicated dependent-neglected without anyone’s being “at fault” and asked the court not to make a finding of fault. He argued that the “advice-of-counsel” defense, which has been raised in malicious-prosecution and criminal cases, should apply here. In response, appellee’s attorney argued that there was no excuse for not following the law; that the attorney giving the erroneous advice was not appellants’ attorney; and that appellants had apparently planned from the beginning to return the child to his biological parents, even though they represented otherwise in the adoption proceeding.
From the bench, the court stated that appellants had neglected G.A. and had left him in a risky situation:
The F.s, in the opinion of this Court, made a decision to disregard the fact that their daughter and son-in-law had been parents of a child who was removed • pursuant to a finding of dependency/neglect. They chose to disregard the fact that there was no certainty as to which parent had inflicted the physical abuse, that either or both parents were still potentially the perpetrator of the physical abuse. I’ve heard no testimony today that eliminates K. as a potential perpetrator. The Court made it clear back in 2005 that both parents were considered as potential perpetrators. The grandparents chose to rely on second hand legal advice, potentially some direct legal advice, from somebody who was not their attorney, to assume that because a DHS case was closed and because an adoption decree had become final, that they were no longer required to comply with the conditions that had been in place, clearly by their own admission, during the interlocutory period, which included no unsupervised contact with K.; nor any contact with the father. And to suddenly believe that well, because the adoption is final, that those conditions were no longer valid. That assumption ignores the provisions of Arkansas Code 9-27-353, which provides:
It should be the duty of every person granted custody, guardianship, or adoption of any juvenile in a proceeding pursuant to or arising out of a dependency neglect action, under this subchapter to insure that the juvenile is not returned to the care or supervision of any person from whom the child was removed.
The F.s are not attorneys, but they are deemed to be bound by the law of the State of Arkansas. The Court believes that the decision by the F.s to allow G. to, basically, be returned to the custody and supervision of his mother, and thereby at times to his father, does under the Arkansas Juvenile Code, under the sections previously cited, constitute neglect, and I find that G is a dependent/neglected juvenile for those reasons.
In the adjudication order entered on May 22, 2007, the court found the child to be dependent-neglected because appellants had placed him back in the home of K.A., where T.A. had contact with him. The court stated that, although appellants claimed that they had relied on the advice of an attorney that, once the adoption was finalized, they could do whatever they wished, they disregarded the previous findings of the court that the biological parents had committed dependency-neglect and that the abuse could have been caused by either or both parents. The court found that appellants had violated Ark. Code Ann. §§ 9-27-303(36)(A)(vi), 9-27-303(36)(A)(vii), and 9-27-353(e)(l) (Supp. 2007). The court stated that the goal would be continued placement of the child in appellants’ home and that K.A. would have supervised visitation for no more than two three-hour visits per week. The court stated that T.A. could have no contact with G.A. but could, when he returned from Iraq, ask the court to modify the visitation order. The court directed appellants to attend counseling and instructed DHS to submit a case plan. Appellants filed this appeal.
Appellants argue on appeal that the trial court erred in refusing to accept their advice-of-counsel defense and ask us to reverse that decision and to modify the circuit court’s order accordingly. They cite no cases in the context ofjuvenile proceedings to support this argument but contend that the advice-of-counsel defense, as applied in malicious-prosecution and criminal cases, should apply here. In malicious-prosecution cases, the advice-of-counsel defense applies if the parties have made a full disclosure of all relevant facts to competent counsel and have acted in bona fide reliance thereon. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). In criminal cases, the defense may apply if the person has fully disclosed all material facts to his attorney before seeking advice and has actually relied on his counsel’s advice in the good-faith belief that his conduct was legal. Covey v. U.S., 377 F.3d 903 (8th Cir. 2004).
We decline to apply the defense in this case. First, appellants did not have an attorney-client relationship with the attorney representing the biological parents. Further, the trial court’s order made no finding as to any level of intent on appellants’ part, which was appropriate given that a finding of dependency-neglect does not require a showing of mens rea. An advice-of-counsel defense is not recognized in juvenile proceedings, in which the touchstone is the juvenile’s best interest, not the defendant’s intention. See Ark. Code Ann. § 9-27-302 (Supp. 2007). Because the juvenile code focuses on the effect of tbe parents’ actions on the child, an attorney’s advice to the parents is not relevant to whether the child is dependent-neglected. Even the most well-intentioned behavior, if it threatens the child’s well-being, can result in an adjudication of dependency-neglect.
The only possible effect of a ruling in appellants’ favor would be to perhaps reduce the stigma of the dependency-neglect finding. We refused to take such a step in Richardson v. Arkansas Department of Human Services, 86 Ark. App. 142, 143-44, 165 S.W.3d 127, 128 (2004):
We first address Richardson’s argument that this case is not moot because the relief she seeks is the erasure of the judicial finding of parental unfitness. While we might agree, as does DHS, that such a finding might be “stigmatizing,” we believe that this argument reflects a fundamental misunderstanding of the purpose of our appellate jurisdiction. It is not enough that Richardson disagrees with a finding of the trial court; for us to review it, there must exist a justiciable controversy that our decision will settle. See Mastin v. Mastin, 316 Ark. 327, 329, 871 S.W2d 585, 586 (1994). To put it another way, a case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy. K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000). (Emphasis added.) Here, Richardson has already regained custody of A. C., so a decision on the merits, either affirming or reversing the trial court, will have absolutely no legal effect on the issue of A.C.’s custody.
We are aware that there are exceptions to the rule that the appellate courts of Arkansas do not decide cases that are moot, render advisory opinions, or answer academic questions. Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989). The most notable exceptions are cases that involve the public interest or tend to become moot before litigation can run its course, or situations where a decision might avert future litigation. Id. However, given the fact that this case turns not on a principle of law, but rather on the adequacy of the evidence to support a trial judge’s findings of fact, we hold that the instant case does not embrace an issue of public interest. Furthermore, we do not believe that adjudications of dependent neglect are necessarily of such short duration that they will evade appellate review. Finally, we do not believe that our decision today could help avert future litigation in this case. If DHS indeed does again become involved in A.C.’s life, which we certainly cannot foresee, it will be because of facts and circumstances that are not presently before us. We are not unsympathetic to the terrible tragedy that has befallen Ms. Richardson and A.C. Nor are we unmindful that a finding of parental unfitness is an especially stinging blow to a person who already has suffered so much. However, decisions of an appellate court can do nothing to assuage the personal pain of all those involved, nor serve as an imprimatur ofMs. Richardson’s parenting abilities.
The same reasoning applies here.
We also hold that the trial court did not clearly err in finding that appellants violated Ark. Code Ann. § 9-27-303(36)(a)(vi) and (vii). The burden of proof in a dependency-neglect proceeding is a preponderance of the evidence. Donahue v. Ark. Dep’t of Health & Human Servs., 99 Ark. App. 330, 260 S.W.3d 334 (2007). Although our review is de novo, we will not reverse the circuit court’s findings unless they are clearly erroneous. Id. The definition of “neglect” in Ark. Code Ann. § 9-27-303(36) includes:
(vi) Failure, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume the responsibility; or
(vii) Failure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm.
On this record, we cannot say that the trial court’s finding that appellants neglected the child is clearly erroneous.
Affirmed.
Bird and Vaught, JJ., agree. | [
-80,
-20,
-19,
60,
26,
96,
122,
8,
87,
-13,
119,
-45,
111,
-25,
29,
111,
76,
43,
96,
105,
83,
-73,
86,
65,
-38,
-13,
-78,
-41,
-77,
125,
-27,
-44,
72,
80,
-118,
-43,
66,
-120,
-121,
-46,
-126,
1,
-70,
109,
89,
67,
32,
99,
30,
14,
53,
63,
-26,
46,
60,
-37,
40,
76,
93,
-68,
-40,
-80,
-53,
5,
-50,
1,
-95,
116,
-102,
39,
120,
46,
-124,
56,
-127,
-24,
50,
-92,
-126,
116,
79,
-103,
9,
117,
102,
-96,
121,
-15,
-7,
8,
-50,
-34,
-99,
-26,
-102,
121,
73,
15,
-74,
-75,
124,
80,
46,
-6,
99,
12,
15,
108,
0,
-113,
20,
-79,
-51,
-111,
-38,
27,
-29,
-59,
50,
117,
-41,
-94,
85,
-61,
115,
-39,
-122,
-6
] |
Sam Bird, Judge.
J. Michael Enterprises, Inc. (JME), brings this appeal from a judgment of the Benton County Circuit Court quieting title to thirty-nine acres in appellee Robert Oliver. The court also awarded Oliver $2,500 in punitive damages and $5,000 in attorney’s fees. JME raises three points on appeal in which it challenges the quieting of title in Oliver on the basis that Oliver had not paid the taxes on the property for seven years and that the tax deed to Oliver contained an invalid description, as well as the award of punitive damages. Finding no merit in any of these points, we affirm-.
Stipulated Background Facts
In 1964, Paula Weir took title by warranty deed to forty acres described as the Southeast Quarter of the Northeast Quarter of Section 9, Township 18 North, Range 29 West, in Benton County. In 1965, Weir had a survey conducted which carved a one-acre tract out of the forty-acre tract. Weir and her husband executed a deed of trust to the one-acre tract. The deed of trust was foreclosed by the lender and the lender purchased the one-acre tract at the foreclosure sale. In 1970, Lulu Woodington purchased the one-acre tract from the lender. In July 1996, Woodington filed suit against Weir seeking to quiet title to the one-acre tract. A decree quieting title in Woodington was entered in August 1996, and an amended order was entered on September 23, 1996. The description in the decree was different from the 1965 survey description.
In 1987, Weir successfully sued to set aside an earlier tax sale of the thirty-nine-acre tract on the basis of an improper tax sale. The complaint alleged that the legal description was improper and that the proceedings to quiet title after the tax sale were defective in that Weir was not made a party to those proceedings.
Weir failed to pay the property taxes on the property after 1989, and the property was forfeited to the State of Arkansas. In November 1996, Oliver received a tax deed to the thirty-nine-acre tract. The description of the property contained in the tax deed was “SE 1/4 NE 1/4 EXC 1 A NW1/4 PT,” together with references to the appropriate section, township, and range as shown by the notation “9 18N 29W.” In January 1997, Oliver and Woodington exchanged quitclaim deeds in which each quit-claimed his or her interest in the other’s property. In other words, Woodington quitclaimed whatever interest she had in the thirty-nine-acre tract to Oliver, and he did the same in regards to the one-acre tract. Woodington then conveyed the one-acre tract to Eric Cabledue by warranty deed also recorded on January 2, 1997. On December 1, 2005, Weir and her husband each executed quitclaim deeds to the entire forty-acre tract to JME. The deeds were recorded on December 5, 2005.
Oliver filed suit seeking to quiet title to his thirty-nine acre tract. He asserted that he had paid the taxes on the property for more than seven years under color of title. The complaint also asserted that JME’s action in obtaining and recording the quitclaim deeds from the Weirs was a violation of Ark. Code Ann. § 5-37-226 (Supp. 2007) and sought treble actual and punitive damages as provided by that section. JME answered, denying the material allegations of the complaint. JME also filed a counterclaim in which it sought a declaratory judgment that the tax deed to Oliver was invalid based on the legal description being legally insufficient.
The Evidence
At trial, Oliver testified that he had paid all of the property taxes owed on the thirty-nine-acre tract since he purchased the property at the tax sale. Oliver also said that he paid the back taxes owed on the property. Both Oliver and Eric Cabledue testified that the exchange of deeds between Oliver and Lulu Woodington was necessitated when Woodington was attempting to sell her one-acre tract to Cabledue and it was discovered that the description of her tract was incorrect. Cabledue said that he had paid all of the taxes on his property since he acquired it. Cabledue also considered the quitclaim deeds executed by Paula Weir and her husband to JME to be a cloud on his title.
Title examiner Phil Bronson testified that, after the exchange of quitclaim deeds between Oliver and Woodington, he issued a title insurance policy for Woodington’s conveyance to Cabledue. He also said that he relied on assessment cards and other records showing the assessment and payment of taxes on property. According to Bronson, the records show that Oliver was paying the taxes on thirty-nine acres of the forty-acre tract. On cross-examination, he acknowledged that he could not tell from the legal description of the tax deed or the information in the Assessor’s Office where Cabledue’s one-acre tract was located within the forty acres. He asserted that the same legal description on Oliver’s tax deed and the records in the Assessor’s Office describe two different thirty-nine-acre tracts because of the changed description of the excepted one-acre tract.
Thurstle Mullen, the president and sole stockholder in JME, testified that JME does not have any specific business and that he purchases property in the corporate name. He described JME as a shell company that owns real estate. Mullen said that he prepared the deeds that the Weirs executed to convey their interest to JME after he determined that the tax deed to Oliver did not describe any lands. He acknowledged that he was unaware of Cabledue’s ownership of the one-acre tract when he obtained the quitclaim deeds from the Weirs. Mullen also could not say that he had researched the tax assessment records before obtaining the quitclaim deeds. He said that, when he did his research, the records showed that Oliver was paying taxes on thirty-nine acres of the forty-acre tract but not which thirty-nine acres.
Shirley Sandlin, the recently retired Benton County Assessor, testified that the assessor’s office keeps records on maps and cards and that any parcel within the county can be located. She said that the card for the forty-acre tract shows the exchange of deeds between Oliver and Woodington and that the entire forty-acre tract has been assessed in the names of either Oliver or Cabledue since 1997. She said that the Oliver and Cabledue tracts cannot be confused with each other. Sandlin had used the legal description contained in the deed from Woodington to Oliver in assessing Oliver’s property. She described the problem as being with only ten acres in the northeast portion of the forty-acre tract. She added that Oliver’s legal description never changed on the card in the assessor’s office because all of Oliver’s land is located within the quarter-quarter description.
Greg Hoggatt, the Tax Collector for Benton County, testified that both Oliver and Cabledue had paid the taxes on their respective parcels since 1997. He said that Oliver’s tax sale purchase included paying the taxes owed for the years 1990 through 1995.
The Circuit Court’s Ruling
The circuit court ruled from the bench and found that Oliver had met his burden of proving his title. The court noted that the parcel number could have been used to obtain the history for the entire forty-acre tract and its correct description. The court also found that both the tax deed and the quitclaim deed from Woodington to Oliver constituted color of title for Oliver and that Oliver had paid the property taxes for more than seven years.
On January 17, 2007, Oliver filed a motion pursuant to Ark. Code Ann. § 5-37-226(a) (Supp. 2007). That statute makes it unlawful to file any instrument of record clouding or affecting the title or interest of the true owner with the intent of clouding the title or procuring money from the true owner. Under subsection (c), an owner who brings suit to remove the cloud from his title is entitled to three times actual damages, punitive damages, and costs, including attorney’s fees. JME filed a response to the motion.
In its written judgment entered on January 31, 2007, the circuit court, in addition to the findings relative to quieting title in Oliver, found that JME procured the quitclaim deeds from the Weirs for the purpose of obtaining money from Oliver and awarded Oliver $2,500 in punitive damages and $5,000 in attorney’s fees. On March 1, 2007, JME filed a motion to modify the judgment pursuant to Ark. R. Civ. P. 60, as well as a notice of appeal from the judgment. On March 30, 2007, the circuit court entered an amended judgment. JME filed an amended notice of appeal on April 9, 2007.
Standard of Review
Quiet title actions have traditionally been reviewed de novo as equity actions. City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W.3d 627 (2005). However, we will not reverse the circuit court’s findings in such actions unless the findings are clearly erroneous. See id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id.
Arguments on Appeal
JME’s first and second points, which we address together, are that the circuit court erred in quieting title in Oliver because the legal description contained in the tax deed to Oliver was insufficient, and that, because of the indefiniteness of the description, Oliver could not rely on either the tax deed or the quitclaim deed from Woodington as color of title. We disagree.
A tax deed is sufficient if the description itself furnishes the key through which the land might be definitely located by proof aliunde. Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987). A tax deed may be declared invalid for want of a sufficient legal description of the land involved. Payton v. Blake, 362 Ark. 538, 210 S.W.3d 74 (2005); see also Gardner v. Johnson, 220 Ark. 168, 246 S.W.2d 568 (1952) (invalidating a deed containing the description: “SW corner NE 1/101 N.Y. 63, 4 NE 1/4 Section 1, Township 7 North, Range 4 West, 5 acres E of R”); Sutton v. Lee, 181 Ark. 914, 28 S.W.2d 697 (1930) (recognizing as invalid the description: “Parts oflots 3 and 4 in block 36 in the city of Hot Springs, Arkansas”); Walls v. Mills, 149 Ark. 670, 225 S.W. 225 (1920) (invalidating a deed containing the description: “Pt. NW NW Section 7 Township 12 S, Range 29 W. 11.16 acres”). Unlike the cases cited above, the description here is sufficient because Oliver owns thirty-nine of the forty acres in the quarter quarter and the question is the location of the one acre he does not own. That can easily be determined by reference to the records in the assessor’s office. Therefore, the tax deed could properly be considered color of title.
In its argument directed to the Woodington deed to Oliver as color of title, JME relies on Bailey v. Jarvis, 212 Ark. 675, 208 S.W.2d 13 (1948), and Weastv. Hereinafter Described Lands, 33 Ark. App. 157, 803 S.W.2d 565 (1991), for the proposition that one cannot “manufacture” color of title. Those cases have no application here because the exchange of deeds between Woodington and Oliver was necessary to align the legal description of Woodington’s property with its actual placement on the ground, as shown by exhibit 22. The Woodington quitclaim to Oliver contains proper metes-and-bounds descriptions of both the forty-acre tract and the one-acre tract belonging to Cabledue.
JME also argues that, because the descriptions in Oliver’s and Cabledue’s deeds are insufficient, Oliver cannot prove the exact thirty-nine acres on which he has been paying the property taxes. However, the testimony was that the description contained in the exchange of quitclaim deeds has been used to assess the property since 1997 and that the taxes have been paid on this assessment since that time.
In JME’s third and final point, it argues that the circuit court erred in awarding Oliver $2,500 in punitive damages and $5,000 in attorney’s fees, pursuant to Ark. Code Ann. § 5-37-226(a). Section 5-37-226(a) requires a two-prong test: first, that the instrument be filed with knowledge that it is not genuine or authentic and, second, that the filing is with the intent either to cloud or adversely affect the owner’s interest in the property or with the intent to procure money from the owner in order to clear the title. JME argues that neither prong has been met and that Oliver offered no proof of his actual damages and, therefore, an award of punitive damages is improper. The circuit court made an express finding that JME obtained the quitclaim deeds from the Weirs for the purpose of obtaining money from the true owner. The court did not make a finding that the instrument was filed with knowledge that it was not genuine or authentic. However, such a finding was implicit when the court awarded punitive damages pursuant to section 5-37-226. Also, both findings are supported by the evidence that JME prepared the quitclaim deeds to the entire forty acres, despite the one acre having been carved out in 1965; that JME was simply a shell company; and that there were no revenue stamps on its quitclaim deeds. Arkansas Code Annotated section 26-60-110(b) provides, subject to exceptions not applicable here, that no instrument evidencing a transfer of title shall be recorded without the attachment of the revenue stamps. Further, the letter attached to Oliver’s complaint implies that JME was seeking money from Oliver in order to clear Oliver’s title.
Oliver did not offer any proof as to his loss or damages during the trial; he did offer an affidavit stating the amount of attorney’s fees he incurred in prosecuting the suit. JME, citing Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992), argues that an award of punitive damages without an award of compensatory damages cannot stand. However, that rule has no application in the present case because the award was not based on a common-law cause of action; rather, it was based on a statutory remedy. As such, the circuit court could have awarded punitive damages without first having awarded compensatory damages.
Affirmed.
Pittman, C.J., and Robbins, J., agree.
Section 5-37-226(a) provides:
(a) It is unlawful for any person with the knowledge of the instrument’s lack of authenticity or genuineness to have placed of record in the office of the recorder of any county any instrument:
(1) Clouding or adversely affecting:
(A) The title or interest of the true owner, lessee, or assignee in real property; or
(B) Any bona fide interest in real property; and
(2) With the intent of:
(A) Clouding, adversely affecting, impairing, or discrediting the title or other interest in the real property which may prevent the true owner, lessee, or assignee from disposing of the real property or transferring or granting any interest in the real property; or
(B) Procuring money or value from the true owner, lessee, or assignee to clear the instrument from the records of the office of the recorder. | [
-44,
108,
-47,
44,
-88,
-64,
10,
-114,
67,
-117,
-27,
83,
-25,
-128,
9,
45,
-29,
125,
-27,
120,
-41,
-77,
99,
35,
-46,
-78,
-39,
93,
-68,
79,
-28,
-42,
76,
112,
-62,
-107,
-60,
64,
-17,
88,
78,
67,
-101,
93,
-55,
64,
52,
-83,
6,
11,
117,
-100,
-78,
44,
57,
75,
73,
44,
-21,
61,
16,
-70,
-69,
13,
123,
7,
-95,
5,
-40,
3,
106,
10,
-112,
49,
-120,
-24,
119,
54,
-126,
84,
9,
11,
41,
102,
102,
18,
13,
-17,
-16,
40,
14,
-17,
29,
39,
-46,
56,
2,
33,
-69,
-99,
120,
0,
78,
-2,
-20,
-123,
29,
108,
5,
-49,
-44,
-125,
13,
-84,
-100,
3,
-1,
-89,
-80,
80,
-49,
-30,
93,
71,
50,
27,
-114,
-16
] |
LARRY D. VAUGHT, Judge
| tMichael Riddick appeals the final order entered by the Circuit Court of Mississippi County denying his motion to, modify cus? tody and granting Emily Harris’s motion to modify child support. On cross-appeal, Harris, argues that the trial court erred in calculating Riddick’s income for child-support purposes; finding her in contempt of the summer visitation schedule; modifying Riddick’s visitation; denying her request to make Riddick’s increased child-support obligation retroactive; and denying her request for attorney’s fees. We affirm on direct appeal and reverse in part and affirm in part on cross-appeal.
The parties’ divorce decree, entered on February 20, 2009, awarded Harris custody of the parties’ son KR,, born May 27, 2007, subject to Riddick’s visitation rights. On. April 18, 2014, Riddick filed a petition for emergency order of custody, petition to modify the divorce decree, and petition for order to show cause and contempt. Riddick alleged that a-material and ^substantial change in circumstances had occurred that justified the modification of custody, visitation, and child support. In response, Harris filed a petition for modification of child support. . .
A final hearing was -held on January 21-22, 2015. On June 26,; 2015, the trial- court issued its final order. Among,other things, the trial court denied Riddick’s petition to modify custody; granted his petition to modify visitation; granted Harris’s petition to modify Riddick’s child-support obligation; granted Riddick’s petition for contempt and ordered Harris to pay Riddick $500 in attorney’s fees; and found that the parties should bear their own attorney’s fees. This appeal and cross-appeal followed.
I. Direct Appeal
For his first point on appeal, Riddick argues that the trial court clearly erred in denying. his petition to modify custody. The facts were undisputed that since the parties’ .divorce, Harris had moved twice, had enrolled K.R. in two different school districts, .had four boyfriends, had been engaged to two men, had a child (B.G.) out of wedlock with Clayton Gentry,, was served a paternity action by Gentry and hired attorney Jim Harris to represent her in that action, began -dating Jjnr Harris (who is twenty-three years older than she) the following month, married him a few months after that, and was expecting his child.
Gentry testified about an incident in the summer of 2013. Around 11:00 p.m., Harris showed up at his apartment unannounced and became upset when she saw another woman there. Gentry said that Harris cursed, called the other woman “bad names,” left the apartment, and got into her vehicle, where she had left B.G. alone. Harris then pulled her vehicle up to Gentry’s front door, honked, and continued to yell. Gentry came out to the car, and when he I,gleaned his arm on the car door, which was open, Harris “hammered down on the gas and drove [him] through [his] ditch,” until he could stop the vehicle.
Finally, there was evidence that after Riddick had filed -the petition to modify custody in April 2014, Harris engaged in a pattern of behavior calculated to limit and diminish K.R.’s relationship with Riddick by unilaterally changing the parties’ visitation schedule. ■
In fe letter opinion, the trial court found that a material change in circumstances had occurred. However, the trial court disagreed that a change of custody was in KR.’s best interest. The court found that both Riddick and Harris were loving, involved parents, who had strong bonds with K.R. The court found that K.R. was happy at the homes of both of his parents. Both stepparents testified that they loved K.R. and welcomed his presence in their homes. The court also found that the parties agreed that K.R. was a happy, well-adjusted child. K.R.’s teacher testified that he was an excellent student, who was motivated and worked hard. The trial court also found that Harris’s behavior had stabilized upon her marriage to Jim Harris and that they seemingly had a loving relationship. Further, the court found that there was no evidence that Harris’s prior unstable behavior had negatively impacted K.R. Finally, the trial coui-t noted that K.R. had lived the past three years with his younger brother B.G. and that it was in K.R.’s best interest to remain with his sibling.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Evans v. McKinney, 2014 Ark. App. 440, at 4, 440 S.W.3d 357, 359. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of 1 ¿custody. Id., 440 S.W.3d at 359. The reason for requiring more stringent standards for modifications than for initial custody determinations is to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id., 440 S.W.3d at 359.
The party seeking modification of the custody order has the burden of showing a material change in circumstances. Id., 440 S.W.3d at 359. In order to change custody, the trial court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the children. Id., 440 S.W.3d at 359. In reviewing child-custody cases, we consider the evidence de novo, but will not reverse a trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Id., 440 S.W.3d at 359.
Riddick argues that the trial court clearly erred in determining that it was in the best interest of K.R. to remain in his mother’s custody. In support of his argument, Riddick restates all of the evidence of Harris’s unstable behavior, argues that she has intentionally alienated him from his child, and points out that he and his wife can provide a stable life for K.R.
Based on a de novo review, we hold that the trial court did not clearly err in finding that it was not in KR.’s best interest to change custody to Riddick. In an extremely detailed letter opinion, the trial court noted that both parents love K.R. and were capable of caring for him. However, the court found there was no reason to alter the current custodial arrangement to which K.R. was accustomed because he is a happy, well-adjusted child, who was performing very well in school. The court also properly considered that K.R. had formed a bond with his | ¿younger brother and that it was important that they continue to live together. See Sykes v. Warren, 99 Ark. App. 210, 217, 258 S.W.Sd 788, 793 (2007) (recognizing that unless exceptional circumstances are involved, young children should not be separated from each other by dividing their custody). Finally, the court found that the questionable behavior of Harris had not negatively impacted K.R. and that since she had remarried, her behavior had stabilized. We will not substitute our judgment for that of the trial court, which observed the witnesses first hand. Evans, 2014 Ark. App. 440, at 6, 440 S.W.3d at 360. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry a greater weight than those involving the custody of minor children, and our deference to the trial judge in matters of credibility is correspondingly greater in such cases. Id., 440 S.W.3d at 360. Therefore, we affirm on this point.
Riddick’s second point on direct appeal is that the trial court abused its discretion in modifying his child-support obligation. As a rule, when the amount of child support is at issue, we will not reverse the trial court absent an abuse of discretion. Browning v. Browning, 2015 Ark. App. 104, at 6, 455 S.W.3d 863, 867.
Pursuant to the divorce decree, Riddick was ordered to pay $501 per month in child support. Riddick’s support payments were later abated to $472.09 per month to account for his six-week summer visitation. At the January 2015 hearing, the evidence established that Riddick had experienced a material increase in income, which was derived from three sources: wages from his employer Syngenta; rental income; and farm income. In its letter opinions, the 16⅛⅛1 court found that Riddick’s net monthly income was $8,735.36. The trial court applied this amount to the family-support chart and concluded that Riddick was obligated to pay $1,251.36 in monthly support.
Riddick argues that the trial court abused its discretion by not deviating from the family-support chart. He contends that the trial court failed to take into account factors supporting a deviation, i.e., K.R.’s accustomed standard of living; other income or assets available to Harris to support K.R;; the extraordinary time K.R. spends with Riddick; and depreciation for his farm equipment.
The courts begin with a presumption that the chart amount is reasonable. Ceola v. Burnham, 84 Ark. App. 269, 273, 139 S.W.3d 150, 153 (2003). Reference to the chart is required, and the chart establishes a rebuttable presumption of the appropriate amount that can only be modified on the basis of written findings stating why the chart amount is unjust or inappropriate. Id., 139 S.W.3d at 153. Because the child-support guidelines áre remedial in nature, they must be broadly construed so as to effectuate the purpose sought to be accomplished by their drafters. Id., 139 S.W.3d at 153. The court may grant more or less support if the evidence shows that the needs of the children require a different level of support. Id., 139 S.W.3d at 153 (citing In Re: Admin. Order No. 10, Ark. Child Support Guidelines, 346 Ark. Appx. 1064 (2002)). Administrative Order Number 10 § V sets forth the factors to be considered when deviating from the amount set by the chart.
|7The record shows that Riddick never asked the trial court to deviate from the family-support chart. There are no’pleadings filed below seeking a deviation. At the hearing, Riddick merely offered testimony about his income. There was no argument to the trial court requesting a deviation. Accordingly, there' are no findings in the trial court’s letter opinions or final order addressing a request for a deviation or explaining why the trial court did not deviate from the chart. .
This court will not consider arguments raised for the first time on appeal, and an appellant must obtain a ruling from the trial court on an issue in order to preserve an argument for appeal. Troutman v. Troutman, 2016 Ark. App. 70, at 9, 482 S.W.3d 365, 370 (citations omitted). Because the trial court did not rule on the point, this court has nothing to review. Id., 482 S.W.3d at 370. It was Riddick’s burden to raise the issue of a deviation from the family-support chart and to obtain a specific ruling on it. His failure to do so precludes this court from considering the merits of his argument.
II. Cross-Appeal
Harris raises five points on cross-appeal. Her first argument is that the trial court abused its discretion in calculating Riddick’s income for child-support purposes. Based on her calculations, Riddick owed $2,559.70 in monthly support.
Arkansas Code Annotated section 9-14-201(4)(A) (Repl. 2015) defines the term “income” as “any periodic form of payment due to an individual, regardless of the source, including wages, salaries, commissions, bonuses, workers’, compensation, disability, payments pursuant to a pension or retirement program, and interest.” Subsection (4)(B) permits the expansion of the definition from time to time in Supreme Court Administrative Order [Number 10—Arkansas Child Support Guidelines. Ark. Code Ann. § 9-14-201(4)(B). See also Admin. Order No. 10(11) (providing the same definition of income). Our supreme court has said that the definition of income included in the administrative order “is intentionally broad and designed to encompass the widest range of sources for the support of minor children.” McWhorter v. McWhorter, 346 Ark. 475, 481, 58 S.W.3d 840, 844 (2001).
It is undisputed that bonus income is income for child-support purposes under the definition of income contained in Administrative Order Number 10. Kelly v. Kelly, 341 Ark. 596, 600, 19 S.W.3d 1, 4 (2000). See also Admin. Order, No. 10 (II)(b). Also, in Ford v. Ford, 347 Ark. 485, 495, 65 S.W.3d 432, 439 (2002), we affirmed the trial court’s finding that a one-time retirement payment received by the appellant fell within the broad range of her income for child-support purposes.
Relying on Riddick’s 2014 earning statement, Harris argues that the trial court abused its discretion in failing to. include “SIP” of $11,977.90 and “Other Benefits” of $26,257.60 in Riddick’s income. “SIP” is not defined on this record; however, it is listed on Riddick’s earnings statement under his salary, and . he testified that he received a bonus twice a year. “Other Benefits” received by Riddick include retirement income, and Riddick testified that his employer contributed to his 401(k) plan. The trial court did not make findings as to whether “SIP” or “Other" Benefits” were income or explain why it did not include these amounts. Considering that the definition of income is intentionally .broad and designed to encompass the widest range of sources for the support of minor children, we conclude that the trial court Rabused its discretion in failing to either include these amounts in Riddick’s income calculation or explain why these amounts should not be included. Accordingly, we reverse and remand on this point.
Harris also argues that the, trial court clearly erred in failing to add rental depreciation to Riddick’s rental inpome. This argument was not raised below; therefore, it . is not preserved for appeal. Troutman, 2016 Ark. App. 70, at 9, 482 S.W.3d at 370.
Harris’s final argument under this point is that the trial court abused its discretion in considering Riddick’s 2012 tax returns to determine his farm income. She contends that the 2012 tax returns should not have been considered because Riddick did not start the farm Until the fall of that year; therefdre, all he had were losses.
Pursuant to Administrative Order No. 10, to determine support for self-employed payors, the trial court should first consider the payor’s last two years’ federal and state income tax returns and the quarterly estimates for the current year. Admin. Order No. 10, § III(c), Here, the trial court complied with Administrative Order No. 10 when it based its determination of Rid-dick’s farm income on his 2012 and 2013 federal and state income tax returns. At the time of the hearing, January 2015, Riddick had not filed -his 2014 returns, and he did not introduce 2014 quarterly estimates. As such, the trial court used the only tax records presented. Therefore, we cannot say that the trial court abused its discretion in considering Riddick’s 2012 tax returns to determine his farm income.
Harris’s second point on cross-appeal is that the trial court erred in finding her in contempt of the summer-visitation schedule. When the parties divorced, the decree awarded Riddick standard visitation with additional overnight visitation each Wednesday night until lmK.R. reached kindergarten. The facts demonstrated that from 2010 until 2014, ■ Harris and Riddick worked well together regarding visitation and had even expanded visitation beyond that stated in the decree and standard schedule.
After Riddick filed for custody, the cooperation ended. The evidence demonstrated that Harris restricted visitation to standard visitation. With regard to summer visitation, the facts established ' that on May 11, 2014, Riddick requested, in writing, summer-visitation dates to start June 12, 2014. Harris agreed that she received the letter on May 12, 2014; however, she refused to allow Riddick visitation as requested claiming that he failed to provide timely notice as per the standard visitation schedule. She contended that Riddick was required to give thirty days’ notice prior to the first Friday in June. She also stated that she did riot like the schedule that Riddick proposed and that she wanted K.R. to have the same summer-visitation schedule as his brother had with his father. As such, she limited Riddick’s summer visitation to multiple two- or three-week visits instead of their traditional one six-week visit.
The trial court found that Harris’s behavior was a willful violation of the decree’s srimmer-visitation schedule. The trial court found that Harris’s interpretation of-the visitation schedule, was “unusual”; that she had not interpreted the visitation schedule in that fashion in the years prior to 2014; that Riddick had provided timely notice as per the schedule; and that Harris did not premise her violation on the advice of counsel because she admitted she wanted the default visitation schedule so that she could coordinate her children’s visitation, and she ludid not want to accommodate Riddick after he had sued her for custody. Based on her contempt, the trial court ordered her to pay Riddick attorney’s fees of $500.
The disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt. Scudder v. Ramsey, 2013 Ark. 115, at 12, 426 S.W.3d 427, 435. However, before one can be held in contempt for violating the court’s order, the order must be definite in its terms and clear as to what duties it imposes. Id., 426 S.W.3d at 435. Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders made for the benefit of those parties. Id., 426 S.W.3d at 435. The contempt in this case was civil because the award of attorney’s fees and costs was for the benefit of Riddick and was thus remedial in nature. Id., 426 S.W.3d at 435. The standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Id., 426 S.W.3d at 435.
Harris contends that the standard schedule is ambiguous, her interpretation of it was . not unreasonable, and her interpretation was based on the advice of counsel. The standard summer visitation schedule is not ambiguous. It provides,
Written notice as to the time and manner of visitation will be provided by the non-custodial parent to the custodial parent at least 30 days in advance of the exercise of visitation. In the event that no notice is given, the default summer visitation schedule shall be as follows: Begin at 6:00 p.m. on the first Friday in June and continue for two weeks. After a one-week break, begin again for two weeks. After a one-week break begin again for the final two-week period.
|12The plain language of the provision states that notice by the noncustodial parent, should be.given thirty days before the day that parent wants to exercise visitation. Riddick complied with this provision. Harris’s interpretation" is unreasonable, and the parties had not interpreted the summer,schedule in this fashion in any of the summers leading up to 2014. Finally, Harris testified that she restricted Rid-dick’s summer visitation because she did not like the schedule he proposed, she wanted K.R. and her other son to have the same visitation schedule, she. was angry with Riddick for filing the petition for custody, and she did not want to accommodate him any further. Accordingly, we hold that the trial court’s finding that Harris was in contempt of the summer-visitation provision of the standard schedule was not clearly against the preponderance of the evidence.
Harris’s next point on cross-appeal is that the trial court clearly erred in increasing Riddick’s visitation. She contends the finding was improper because he did not ask for increased visitation and it was made to punish her.
The same standard of review applicable to the modification of custody applies to the modification of visitation. .We consider the evidence de novo. Baber v. Baber, 2011 Ark. 40, at 9, 378 S.W.3d 699, 705. We will not reverse the trial court’s findings unless they are clearly erroneous. Id., 378 S.W.3d at 705. When the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child’s best interest. Id., 378 S.W.3d at 705.
A trial court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not 11sknown to it at the time of the initial order. Id., 378 S.W.3d at 705. Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations. Id.\ 378 S.W.3d at 705. Thus, the party seeking a change in visitation has the burden to demonstrate a material change in circumstances that warrants such a change. Id., 378 S.W.3d at 705.
The primary consideration regarding visitation is the best interest of the child. Id., 378 S.W.3d at 705. Important factors the .court considers in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. at 10, 378 S.W.3d at 705. Fixing visitation rights is a matter that lies within the sound discretion of the trial court. Id., 378 S.W.3d at 705.
The trial court did not sua sponte increase Riddick’s visitation. Riddick, in his petition for emergency order of custody, petition to modify, and petition for order to show cause and contempt, alleged that a “material and substantial change in circumstances has occurred which justifies this Court entering an Emergency order of custody, and modifying the previous orders of this Court with regard to custody, visitation, and child support.” Therefore, the issue was properly raised by Riddick below.
Upon review of the trial court’s findings, we are not persuaded by Harris’s assertion that the trial court modified visitation for the sole purpose of punishing her. Without restating each of the examples of Harris’s unstable behavior, it is clear that there is more than sufficient | Mevidence on this record to support the trial court’s finding that there had been a material change in circumstances since the entry of the divorce decree. And while the trial court did voice its displeasure with Harris’s efforts to curtail and control Rid-dick’s visitation, it is clear that the increase in visitation awarded to Riddick was based on the trial court’s finding that the modification was in KR.’s best interest. The trial court stated in its letter opinion that the “modification reflects the reality of what [Harris] and [Riddick] had independently assessed to- be in [KR.’s] best interests in the years prior to the instant action.” We therefore hold that the trial court did not clearly err when it increased Riddick’s visitation.
Next, Harris argues that the trial court abused its discretion in denying her request to make Riddick’s increased child-support obligation retroactive. The trial court ordered Riddick to begin making increased child-support payments in January 2015, the month of the final hearing. Harris argues that this was error based on Arkansas Code Annotated section 9-14-107(d) (Repl. 2015), which provides that any modification of a child-support order that is based on a change in gross income of the noncustodial parent shall be effective as of the date of filing a motion for increase or decrease in child support unless otherwise ordered by the court. She contends that under this statute, the trial court should have ordered Riddick make support payments retroactive from the date she filed her petition to modify child support in May 2014 and that there was no reason to not comply with the statute.
This issue is reviewed for an abuse of discretion. Tucker v. Tucker, 96 Ark. App, 194, 199, 239 S.W.3d 532, 536 (2006) (citing Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996)). The trial court did not abuse its discretion in not applying the increased child support retroactively. Section 9-14-107(d) provides for retroactive application unless othe'rwise ordered by | Kthe court. Here, the trial court found that Harris and her husband both testified that K.R. was well supported in their home during the eight months after she had filed the petition to modify child support. The court further found that there was no evidence that K.R. was negatively impacted by Riddick’s payment of the lower amount of child support during that time period. Based on these findings, the court concluded,
[H]aving carefully considered all factors pertaining to the best interests of the child, as well as being mindful of the Court’s discretion as to whether to order retroactive imposition of child support, the Court hereby specifically rules that the modified support amount ... shall not be retroactive to the date of the filing of the petition to modify. Instead, the first such increased payment shall be due for the month of January 2015 and each month thereafter.
Contrary to, Harris’s argument, the trial court gave, reasons for not applying the increased child support retroactively. Because the court specifically ordered that the increase not be retroactive, and gave reasons for doing so, we conclude that it did not abuse its discretion and affirm on this point.
Harris’s fifth and final point on cross-appeal is that the trial court abused its discretion in denying her request for attorney’s fees. She argues that Riddick has the financial means to pay her fees and she does not.
In domestic-relations proceedings, the trial court has the inherent power to award attorney’s fees, and the decision to award fees and the amount of those fees are matters within the discretion of the trial court. James v. Walchli, 2015 Ark. App. 562, at 6-7, 472 S.W.3d 504, 508 (citations omitted). Absent an abuse of that discretion, an award of fees will not be disturbed on appeal. Id. at 7, 472 S.W.3d at 508 (citations omitted).
The trial court did not abuse its discretion in denying Harris’s request for attorney’s fees. First, the trial court was in a better position to analyze the request in light of the pleadings, motions, orders, conferences, and hearings filed or conducted in this matter. Scroggins v. Scroggins, 302 Ark. 362, 368, 790 S.W.2d 157, 161 (1990). Second, Harris focuses only on the disparity of the parties’ respective incomes when arguing she is entitled to fees. This factor, while relevant, cannot alone justify an award of attorney’s fees. Id., 790 S.W.2d at 161. Third, we note that each party raised multiple issues in this case. In addition to defending the claim for modification of‘ custody, she was pursuing a child-support increase, retroactive support, and contempt against Riddick. She did not prevail in all of these matters. Therefore, we hold that the trial court did not abuse its discretion in denying Harris’s request for attorney’s fees.
Affirmed on direct appeal; reversed and remanded in part and affirmed in part on cross-appeal.
HIXSON and BROWN, JJ., agree.
. Riddick also remarried.
. The trial court found that Riddick's monthly income from Syngenta was $5,808.07, that he had no rental income, and that his monthly farm income was $2,927.67.
. Items listed as "Other Benefits” in the earnings statement include: "Medical Employer,” "Dental Employer,” "401K Employer,” "Basic Life Employer,” "Basic AD & D Employer,” “LTD Employer,” and "EE GTLI Taxable.”
. 'Harris allowed Riddick to have overnight visitation on Wednesdays, extended weekend visitation, extended summer visitation, and time with K.R, the morning of his first days of kindergarten and first grade.
. Harris also argues that she cannot be held in contempt for violating the standard visitation schedule because it was not attached to the decree and is not part of the case file. However, we note that she is also arguing that Riddick should have been forced to adhere to the notice provisions of the standard schedule. She cannot rely on the standard schedule when it works to her advantage and ignore it when it works to her disadvantage. We further note that the standard visitation schedule is included in the record and addendum. Therefore, we reject these arguments.
. Harris's argument heading also asserts that reversal is warranted because she was the prevailing party. However, the body of her argument does not discuss this argument. If an argument heading raises an issue but the body of the argument does not address the issue, we will not reach it on appeal. Adams v. Howard, 2014 Ark. App. 328, at 7 n.3, 436 S.W.3d 473, 478 (citing Jones v. McLemore, 2014 Ark. App. 147, 432 S.W.3d 668). | [
-80,
-52,
-3,
60,
26,
33,
-56,
37,
82,
35,
-25,
83,
-85,
-10,
0,
121,
58,
15,
80,
121,
-13,
-73,
-57,
-32,
-14,
-13,
-79,
95,
-77,
79,
-20,
-33,
76,
48,
-89,
81,
70,
-126,
-17,
16,
-114,
19,
25,
-23,
81,
67,
58,
34,
16,
15,
53,
-98,
-16,
44,
57,
-21,
-116,
110,
89,
-87,
88,
-47,
-109,
15,
122,
52,
-80,
20,
-100,
38,
64,
31,
-100,
56,
1,
-23,
50,
-106,
-122,
116,
68,
-97,
25,
48,
102,
4,
-23,
-1,
-71,
-88,
79,
-98,
-102,
-89,
-103,
121,
74,
68,
-74,
-66,
108,
-36,
27,
124,
110,
-114,
125,
100,
-58,
-53,
-112,
-71,
-116,
-111,
-116,
-77,
-29,
85,
48,
113,
-53,
-94,
84,
6,
57,
-45,
-15,
-92
] |
ROBERT J. GLADWIN, Judge.
|,Appellant Albert Stuart appeals from a divorce decree filed on August 5, 2011, which awarded permanent alimony to ap-pellee Lilly Stuart and from the February 6, 2012 substitution order that clarified the award of alimony. Appellant argues that the trial court should reverse the award of alimony in the divorce decree and in the subsequent order that modified it. Appellant also contends that the trial court erred in modifying the initial divorce decree beyond the expiration of ninety days from entry. We affirm.
On May 24, 2011, appellant filed his complaint for divorce, and appellee subsequently filed an answer and counterclaim for divorce and spousal support. Testimony at trial showed that, at the time of the hearing, appellee received social-security income of $642 per month and was not working, although she presented no evidence showing that she was incapable of employment. Appellee stated that the reason she was entitled to spousal support was that she |2had “put up with him” for eighteen years. Appellee also testified that she had located a place to rent in Grubbs, Arkansas, for $325, including utilities. She acknowledged that she was aware of the availability subsidized-governmental housing in Newport, Arkansas, approximately twenty-five miles away, that would cost her “practically nothing.” Ap-pellee explained that she did not consider that option because her preference was to live in Grubbs, where her children live, although she did admit that she also has one grandchild who lives in Newport.
Appellant explained that he was “100-percent disabled,” according to the Veteran’s Administration (VA), with a back problem that keeps him from working. Appellant receives $1670 per month in social-security income and $770 each month from a pension. Appellant testified to monthly payments in the sums of $226 for the house, $134 for its central heating/cooling system, $134 for life insurance, and $100 per month for a tool shed.
The trial court ordered an equal division of property, and the original divorce decree entered on August 5, 2011, states in pertinent part:
Based upon the term of the marriage and the disparity in income the Court awards Lilly alimony in the amount of $440.00 per month which shall be paid through the registry of the Court.
Appellant filed a notice of appeal of the decree on August 30, 2011. The second order entered on February 6, 2012, states that the purpose of its entry was to settle the uncertainty and clarify the ruling with respect to paragraph four of the August 5, 2011 Decree of Divorce relative to the payment of alimony. The second order sets general time limits and directs the IsSocial Security Administration to make the withholding from appellant’s social security payments. Appellant filed a supplemental and amended notice of appeal from both orders on February 8, 2012.
I. Award of Alimony in Divorce Decree and in Later Modification
A. Standard of Review
The decision to grant alimony lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). A trial court abuses its discretion when it exercises its discretion improvidently, or thoughtlessly and without due consideration. Delgado v. Delgado, 2012 Ark. App. 100, at 6, 389 S.W.3d 52, 57.
B. Case Law and Statutory Provisions
In Davis v. Davis, 79 Ark. App. 178, 185-86, 84 S.W.3d 447, 451 (2002), this court noted the pertinent factors in a determination to award alimony:
Alimony and property divisions are complementary devices that a chancellor employs to make the dissolution of a marriage as equitable as possible.... The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; and (4) the earning ability and capacity of both parties. [T]his court explained that the amount of alimony should not be reduced to a mathematical formula and that the need for flexibility outweighs the need for relative certainty. However, the court should consider the total income, from whatever source, including social security payments, of both parties in making the determination.
14(Internal citations omitted.)
Alimony is not available under the common law, but rather is a creature of statute, and a discretionary one at that. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). Because an alimony award is statutory, it must be strictly construed. In Arkansas Code Annotated section 9-12-312(a)(1) (Repl.2009), the statute demonstrates that any alimony must be awarded at the time of the divorce:
(a)(1) When a decree is entered, the court shall make orders concerning the alimony of the wife or the husband and the care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case.
(b) In addition to any other remedies available, alimony may be awarded under proper circumstances to either party in fixed installments for a specified peri od of time subject to the contingencies of the death of either party, the remarriage of the receiving party, or such other contingencies as are set forth in the award, so that the payments qualify as periodic payments within the meaning of the Internal Revenue Code.
Id.
C. Discussion
Appellant makes numerous arguments as to why the trial court’s award of alimony should be reversed. Initially, he argues that the award is counter to precedent that specifically states that the purpose of alimony is not to punish the other spouse. Appellant claims that the only reason for alimony stated by appellee was to punish him, as she unequivocally testified:
I draw $642 in Social Security. He draws almost three times that amount by his estimates. I am asking the Court that he pay me some amount of spousal support to help me live. I am entitled for putting up with what I did for 18 years.
| ¡¡(Emphasis added.) He argues that this is insufficient justification to award any support. In Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999), this court reversed an alimony award, unequivocally stating that ordinarily, fault or marital misconduct is not a factor in an award of alimony. See McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). Appellant contends that none of the other proper, factors cited in Davis, supra, were stated as reasons for support, and he claims that the trial court relied upon the impermissible criteria of punishment and entitlement, which are insufficient grounds in light of the facts in this case for a lifetime award of alimony.
We disagree. Despite appellee’s testimony implying that she should receive alimony to punish appellant, nothing in the record indicates that the trial court awarded alimony to punish him. See Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006) (upholding alimony award where nothing in the record indicated that the trial court relied on an improper factor in awarding alimony even though there was testimony related to the factor by the supported spouse). The trial court did not mention appellee’s statement in its ruling, instead referring to other evidence in the record that was relevant to the proper economic factors. Contrary to appellant’s assertion that the evidence did not support any ground for alimony other than punishment or entitlement, the trial court considered both parties’ extensive testimony regarding their income, assets, work history, standard of living, and future ability to earn money.
| (¡Appellant next argues that the trial court’s award failed to take into account that parties are expected to use their best efforts to rectify an economic imbalance. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988). Whether one party has available other resources — and whether he or she has utilized those resources — are proper considerations for the trial court — as are the efforts of the spouse. In this case, appellant asserts that he is disabled, and he reiterates the VA’s conclusion that he is “100-percent disabled.” He notes that ap-pellee, on the other hand, presented no such evidence regarding her employment ability or efforts. In Davis, supra, this court noted that income from whatever source, including governmental benefits, may be considered regarding an alimony request:
[T]he court should consider the total income, from whatever source, including social security payments, of both parties in making the determination.
Davis, 79 Ark. App. at 186, 84 S.W.3d at 451. Also, in Administrative Order No. 10, the Arkansas Supreme Court recognizes that availability of income “from whatever source” may be attributed to the dependent, which appellant suggests indicates that the supreme court expects parties— both the payor and the payee — to utilize all available resources.
Appellant notes that appellee testified that she would not consider moving even a short distance where she might obtain considerable preferences in her housing costs. Her testimony is as follows, as noted in the abstract:
The place which I found for $325 a month is on Elm Street in Grubbs, which is owned by a private individual. I have not checked into a place in Newport where people with low income as I have can obtain. I probably would be eligible to get a place in Newport for practically nothing, but all my children are in Grubbs, and I would prefer to stay in Grubbs.
|7As to her only reason for not moving, the abstract indicates that she testified inconsistently:
I have lived in Grubbs for 18 years. I do not wish to move to Newport. I have family [in] Grubbs but have a grandkid in Newport, but that is the only one.
Appellant contends that governmental benefits have been properly considered in relation to an alimony demand. See Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992). Appellant argues that, in this case, appellee’s efforts to utilize all available resources, or the lack thereof, are demonstrated by her decision to forego housing at admittedly virtually no cost to her.
We note that there is no authority for the proposition that a spouse must utilize public housing if she would qualify absent an award of alimony. Under Arkansas Code Annotated section 9-12-312(a)(1), the trial court should “make orders concerning the alimony of the wife or the husband ... as are reasonable from the circumstances of the parties and the nature of the case.” Nothing in either the statute or applicable case law requires a spouse to attempt to obtain public housing before a trial court may award alimony. Additionally, the evidence presented to the trial court established neither that public housing was available to appellee nor that the “cash value” of the government benefit would have offset the disparity in income between the parties. Accordingly, we hold that the trial court did not abuse its discretion with respect to its findings on this issue.
Appellant also argues that the alimony award would devastate him financially, but the trial court’s findings indicate that, even with the alimony award, appellant’s monthly income is $2000 while appel-lee’s is $1082. Absent the alimony award, appellant’s income would be $2440 per month, and appellee’s income would be $642 per month. We find no merit in | Sappellant’s contention that the alimony award is inequitable and places a significant burden on him. Appellant testified to a total monthly income of $2440. He also testified that he pays $226 per month for the parties’ marital home, $134 per month for a heating and cooling system, $134 per month for life insurance, and $100 per month for a shed. The $440 monthly alimony payment constitutes only eighteen percent of appellant’s monthly income. Considering appellee’s long-term homemaker status, her advanced age of seventy-four, and the fact that, even with alimony, appellant’s monthly income remains twice that of appellee, we hold that the trial court’s decision is consistent with the analysis set forth in Davis, supra; Delgado, supra.
Finally, appellant argues that the trial court’s award of alimony was unnecessary. Alimony must be based upon true needs of a party and the ability of the other party to pay. Davis, supra. He maintains that appellee neither testified as to any monthly expenses nor introduced into evidence an Affidavit of Financial Means to justify any award of spousal support. Appellant argues that the $440 per month award was neither necessary nor supported by the evidence, which actually indicated appellant’s inability to work and his limited available assets.
We disagree. The trial court’s award of alimony reflected consideration of the four factors set forth in Davis, supra. The trial court considered the financial circumstances of both parties, the amount and nature of the current and anticipated income of both parties, and the extent and nature of the resources and assets of each of the parties. The trial court observed 19that while appellant’s income was $2440 per month, appellee’s income was $642 per month. In awarding appellee $440 per month in alimony, the trial court noted that the award did not equalize the income disparity between the parties, but equitably acknowledged a portion of appellant’s work history, and corresponding income, occurred prior to the parties’ marriage. The trial court also considered the relative earning ability and capacity of each party, finding that, because of the age of the parties, neither of them would be likely or able to obtain work outside the home. The trial court also acknowledged that ap-pellee did not work outside the home during the parties’ nineteen-year marriage.
The appropriateness of an alimony award is determined in light of the facts in each case, and the trial court is in the best position to view the needs of the parties in connection with an alimony award. See Taylor, supra. We hold that the trial court in this case applied the correct legal standard, found facts that were supported by the evidence presented, and did not abuse its discretion in awarding alimony to appellee.
II. Modification of Earlier Order Beyond the Expiration of Ninety Days
As previously stated, alimony, a creature of statute, if awarded, must be awarded at the time of the divorce decree. Ark.Code Ann. § 9—12—312(a)(1). The latter order in this case (1) explained that the previously awarded alimony would begin from the date of the entry of the earlier award; (2) clarified that the Social Security Administration must withhold the payments from appellant’s social-security disability payments; (3) and provided that the alimony payments shall continue until remarriage or appellate ruling.
110Under Arkansas Rules of Civil Procedure 60(a) (2011), a trial court loses jurisdiction to modify an earlier order once ninety days pass:
Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
See also Tyer v. Tyer, 56 Ark. App. 1, 937 S.W.2d 667 (1997). In Holt v. Holt, 70 Ark. App. 43, 14 S.W.3d 887 (2000), this court pronounced:
In the absence of either changed circumstances or ambiguity, the changes made to the decree were not clarifications of what the court originally intended, but instead modifications that changed the effect that the decree would have had pursuant to its express terms and the law extant at the time it was pronounced .... (Rule 60(a) allows a court only to correct the record to make it conform to action actually taken at the time, and does not permit a decree to be modified to provide for action that the court, in retrospect, should have taken, but which it in fact did not take.)
70 Ark. App. at 45, 14 S.W.3d at 888-89 (citations omitted).
In Edwards v. Edwards, 2009 Ark. 580, 357 S.W.3d 445, the supreme court observed that the trial court had jurisdiction to decide alimony at the time of the decree, pursuant to Ark.Code Ann. § 9-12-312(a)(1). As noted in Grady, supra, if a party desires alimony, that should be addressed at the time of the divorce.
Appellant contends that, pursuant to Rule 60, the trial court did not have jurisdiction to enter the second order on February 6, 2012, well past ninety days from the August 5, 2011 filing date of the divorce decree. But we note that Rule 60 is not applicable where the trial court merely corrects the record to more accurately reflect its original ruling. Ford v. Ford, 30 Ark. App. 147, 783 S.W.2d 879 (1990). The trial court’s February 2012 order eon-tained | ntwo rulings. The first ruling provided that the alimony awarded was effective when the divorce decree was entered, rather than the date of oral pronouncement. The order merely recites the applicable law and does not violate Rule 60. Arkansas Rule of Civil Procedure 58 (2011) provides that a judgment is effective the date it is entered. Under Arkansas Supreme Court Administrative Order No. 2(b)(2) (2011), a judgment is entered when filed by the clerk. Accordingly, we hold that the portion of the February 6, 2012 order regarding the effective date of the alimony award in the divorce decree was merely a clarification and recitation of the law and was not improper under Rule 60.
The second portion of the February 2012 order addressed the withholding of alimony from appellant’s social-security disability payments. This ruling merely corrected an oversight in the original divorce decree. See Linn v. Miller, 99 Ark. App. 407, 261 S.W.3d 471 (2007). The trial court “retains the power to clarify or interpret a prior decree for more than ninety days in order to more accurately reflect the court’s original intention.” Id. at 413, 261 S.W.3d at 475. The February 2012 order specifically states that its purpose is to resolve “uncertainty” in the court’s August 2011 order. Accordingly, Rule 60 did not preclude the court from entering the February 2012 order.
Affirmed.
HART and MARTIN, JJ., agree. | [
-111,
110,
-35,
94,
-118,
48,
11,
-88,
114,
70,
-89,
-45,
39,
-10,
80,
107,
-94,
41,
97,
104,
-45,
-79,
22,
65,
123,
-13,
-87,
-40,
-72,
77,
-11,
-41,
76,
112,
-94,
-59,
102,
-54,
-59,
80,
6,
-122,
-85,
109,
89,
-58,
48,
47,
66,
11,
49,
-114,
-77,
47,
25,
-54,
76,
46,
89,
41,
-64,
-78,
-118,
13,
111,
1,
-79,
52,
-98,
38,
88,
110,
-100,
57,
8,
-23,
114,
-74,
-106,
116,
67,
-69,
1,
116,
98,
18,
-123,
-3,
-4,
-120,
14,
-43,
-113,
-90,
-112,
-47,
91,
12,
-90,
28,
126,
20,
30,
126,
56,
-99,
61,
108,
11,
-98,
-106,
-103,
77,
25,
-98,
-126,
-17,
-95,
48,
113,
-49,
-94,
124,
70,
123,
-101,
-121,
-125
] |
JOHN B. ROBBINS, Judge.
| jThis is a grandparent visitation case. The appellant is Summer Harrison (formerly Phillips), and her son is ten-year-old S.P. Summer appeals from a March 14, 2011, order of the Faulkner County Circuit Court awarding grandparent visitation to S.P.’s paternal grandparents, appellees Dale and Carol Phillips.
For reversal, Summer argues that the trial court abused its discretion in awarding grandparent visitation and that its order is unsupported by the evidence. Summer also argues that the Arkansas Grandparental Visitation Rights Act, Ark. Code Ann. § 9-13-103 (Repl.2009), is unconstitutional as applied to her. Because Summer’s constitutional argument was not raised and developed before the trial court, and because she failed to obtain a ruling, her constitutional argument is not preserved for review. See Brown v. Kelton, 2011 Ark. 93, 380 S.W.3d 361; Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004). However, we agree |2with Summer’s first argument that the award of grandparent visitation amounted to an abuse of discretion, and we reverse the trial court’s decision. Specifically, we agree with Summer’s contention that the appellees failed to rebut the statutory presumption that her decision denying visitation was in S.P.’s best interest.
Relevant to this appeal, Ark.Code Ann. § 9-13-103 (Repl.2009) contains the following provisions:
(b) A grandparent or great-grandparent may petition a circuit court of this state for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if:
(1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation;
(2) The child is illegitimate and the petitioner is a maternal grandparent of the illegitimate child; or
(3) The child is illegitimate, the petitioner is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction.
(c)(1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and
(B) Visitation with the petitioner is in the best interest of the child.
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:
(1)(A) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;
(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months; or
(C) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or
(2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.
(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
| s(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
(f)(1) An order granting or denying visitation rights to grandparents and great-grandparents shall be in writing and shall state any and all factors considered by the court in its decision to grant or deny visitation under this section.
As a rule, when the setting of visitation is at issue, we will not reverse the trial court absent an abuse of discretion. Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008). Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidently. Id.
Summer was married to S.P.’s father, Lee Phillips, when S.P. was born on October 21, 2001. Summer filed a complaint for divorce against Lee in Faulkner County Circuit Court on September 14, 2004. While the divorce action was pending, the trial court entered a temporary order on February 18, 2005, which awarded alternate-weekend visitation to Lee at the home of Lee’s parents and supervised by Lee’s father, appellee Dale Phillips. Pursuant to Summer’s subsequent petition for emergency relief, the trial court entered an order on April 1, 2005, which suspended visitation between Lee and S.P. until further orders of the court.
The trial court entered a divorce decree on February 9, 2007, granting Summer a divorce from Lee. The divorce decree awarded full custody of S.P. to Summer and provided that Lee was entitled to visitation, supervised by his parents, every other Saturday for four hours. Shortly thereafter, on April 10, 2007, the trial court again suspended 14visitation between Lee and S.P., and ordered that there be no contact between them until further orders of the court.
After a hearing held on December 31, 2008, the trial court entered an order on March 3, 2009, finding that it was not in S.P.’s best interest to have supervised visitation with Lee. However, that order provided that Lee be allowed to communicate with S.P. The trial court found that S.P. had suffered some maltreatment of a sexual nature at the hands of his father. The trial court ordered Summer, Lee, and S.P. to attend counseling with the goal of establishing visitation between S.P. and his father. An amended order was entered on June 23, 2009, wherein the “maltreatment of a sexual nature” language was removed and the trial court found that it “was satisfied at the time of the previous hearing that something unseemly had happened between [Lee] and the child and the court has not changed its opinion.” The amended order denied Lee visitation but permitted Lee and his family to write letters and send gifts to S.P.
The appellees herein, Dale and Carol Phillips, filed a motion to intervene on February 19, 2010. In their motion, the appellees asserted that it would be detrimental to S.P. should his relationship with his paternal grandparents not be maintained. Dale and Carol sought to intervene in order to seek grandparent visitation with the child, and attached to their motion to intervene was a complaint requesting a visitation schedule. Summer opposed the motion to intervene and filed an answer to the complaint on March 19, 2010, asking that Dale and Carol be denied visitation. The trial court entered an order on July 16, 2010, permitting the paternal grandparents to intervene for purposes of pursuing visitation with S.P. A hearing |son the issue of grandparent visitation was held on December 8, 2010. At the time of the hearing, Summer and S.P. had relocated to Fort Smith and the appellees lived in Clinton.
Maureen Kessler, an outpatient therapist in Fort Smith who counseled S.P. six times over the past year, testified at the hearing. Ms. Kessler testified that S.P. was adamant that he does not want to visit his father, Lee Phillips, at all. Ms. Kes-sler stated, however, that she thought that S.P. was prepared to have visitation with his paternal grandparents on a limited basis with supervision. If visits were granted, Ms. Kessler recommended that they occur four or five times a year. Ms. Kes-sler noted that S.P. mentions his “g-daddy” (Dale) and expresses fond memories of him. While Ms. Kessler recommended that there be visitation with S.P.’s grandparents, she noted that they should be supervised because S.P. had told her in several sessions that he is terrified that his father will show up if he visits his grandparents.
Ms. Kessler testified that S.P. has a great relationship with his mother. Summer has remarried, and S.P. has a great relationship with his stepfather as well. Ms. Kessler described them as a good, cohesive family unit. Ms. Kessler indicated that S.P. had not recently had any regular contact with his grandparents, and it was her opinion that S.P. was thriving despite the lack of a continuous relationship with them. Ms. Kessler stated that S.P. did not want to visit his grandparents unless his parents (Summer and his stepfather) were there with him. Ms. Kessler indicated that if there is to be more grandparent visitation, S.P.’s anxiety will in crease and he will need to continue to see her.
Dale Phillips testified that he and Carol saw S.P. often before Summer and Lee divorced. After the divorce, Dale and Carol briefly had some unsupervised visits with S.P. |fiHowever, Dale said that they have had little contact with S.P. over the past two or three years until a few recent visits that were supervised by Summer and her husband. During those visits with S.P. they would eat breakfast at a restaurant and then go bowling or treat S.P. to some other fun activity. Dale stated that he very much enjoyed these recent visits with S.P., which went very well and lasted about four hours each.
Dale testified that he and Carol have a good relationship with S.P., and that they love S.P. and he loves them. Dale asked the trial court to award them grandparent visitation, and said that he did not oppose supervised visitation until S.P. can get acclimated to visiting them again. Dale stated that his goal is to get unsupervised overnight visitation sometime in the not-too-distant future.
Dale described S.P. as a very polite, respectful child, and he indicated that he does not have any concerns about Summer’s parenting abilities. However, he stated that at times Summer has denied him and his wife visitation, and he thought that she should not have the right to keep S.P. from visiting them. Dale thought that it was not right for a child to not be able to see his grandparents.
Summer testified that the paternal grandparents have had a very limited and almost non-existent relationship with S.P. She further stated that she did not believe that the absence of this relationship had negatively influenced the child. Summer described S.P. as a normal, happy child who has friends and makes good grades.
S.P. testified that he attends school in Fort Smith and is doing well. He stated that he likes all of his teachers and has some friends. S.P. indicated that he likes visiting his |7grandparents as long as his mother is there. However, he expressed considerable anxiety about having any unsupervised visitation with them or going to his grandparents’ house. S.P. testified:
Well, I think that I shouldn’t go to my grandparent’s house. I don’t want to go because like something like Lee might come in or something like that. Lee’s my first dad. I decided to call him that. I like being around my grandparents. I would probably just like to go somewhere or, go to a park or something and play with them. But, I don’t want to go to their house.... I do not want to spend time with my grandparents without my mom there, because I do not feel safe without my parents (mother and stepfather) being there.... Well, because anything could really happen. I just don’t really feel safe.
The trial court entered an order awarding grandparent visitation to Dale and Carol on March 14, 2011. The visitations were to occur every three months over the next six months. After that, the visits were to be every other month for at least four hours each, with the visitations alternating between Conway and Fort Smith. The trial court ordered that the grandparent visitation be supervised by an appropriate party until further rulings by the court.
In this appeal, Summer challenges the sufficiency of the evidence supporting the trial court’s decision to award grandparent visitation. Summer contends that the appellees failed to establish a significant and viable relationship with the child as required by Ark.Code Ann. § 9-13-103(c)(2)(A). Summer further argues that the appellees failed to establish that visitation with them was in S.P.’s best interest as required by subsection 9-13- 108(c)(2)(B). Finally, Summer complains that the trial court failed to comply with the terms of the Arkansas Grandparental Visitation Rights Act because it failed to state in writing the factors it considered in granting grandparent visitation as mandated by subsection 9—13—103(f)(1).
|sWe do not agree with Summer’s contention that Dale and Carol failed to present evidence of a significant and viable relationship with the child. Arkansas Code Annotated section 9-13-103(d)(1)(C) provides that this may be established by proof that the petitioner had regular or frequent contact with the child for at least twelve consecutive months. In her argument, Summer acknowledges that early in S.P.’s life there may have been twelve consecutive months of regular and frequent contact with his paternal grandparents. But she asserts that this regular contact was severed beginning a few years ago, shortly after she divorced S.P.’s father. However, in Brandt v. Willhite, 98 Ark. App. 350, 255 S.W.3d 491 (2007), we were faced with a similar situation where the grandparents had regular and significant contact over the first several years of the child’s life, which was subsequently lost over the next several years. We held there that a significant and viable relationship had been established by the grandparents and declined to extend the statute to require that the twelve-month period of frequent contact occur close in time prior to the grandparents’ petition for visitation. Id. Similarly, in the case at bar, because Dale and Carol established regular contact with S.P. for at least twelve consecutive months during S.P.’s life while his parents were still married, Dale and Carol proved a significant and viable relationship under the statute even though they have not had recent regular contact with the child.
However, we agree with Summer’s contention that Dale and Carol failed to rebut the applicable statutory presumption because they failed to establish that grandparent visitation was in S.P.’s best interest. We also agree that the trial court failed to comply with the [Requirement that it make written findings supporting its decision to award grandparent visitation.
Pursuant to Ark.Code Ann. § 9—13—103(e), to establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove (1) the petitioner has the capacity to give the child love, affection, and guidance; (2) the loss of the relationship between the petitioner and the child is likely to harm the child; and (3) the petitioner is willing to cooperate with the custodian if visitation with the child is allowed. In the case at bar, we agree with Summer’s contention that the appellees failed to establish the second prong of this test because there was a lack of evidence that the loss of their relationship with S.P. was likely to harm the child. The trial court made no written findings of the factors it considered in awarding grandparent visitation, and even had it found that the loss of the relationship between S.P. and his grandparents would likely result in harm to S.P., the testimony at trial does not support such a finding.
The testimony showed that, while Dale and Carol had regular contact with S.P. during the early years of his life, there was very little contact between them beginning soon after S.P.’s parents divorced in February 2007. Since that time, S.P.’s relationship with his paternal grandparents has been tenuous at best, and S.P. expressed anxiety about visiting them due to his fear of his father. Despite a prior order allowing Dale and Carol to contact S.P. through the mail and send gifts, Dale acknowledged that they rarely exercised such contact. While S.P.’s counselor recommended grandparent visitation, she also stated that this would result in increased anxiety for S.P. and the need for additional therapy sessions. She further | ^acknowledged, along with the other witnesses, that S.P. was thriving in the custody of Summer despite the very limited contact with his grandparents over the past few years. At the time of the hearing, the evidence showed S.P. to be a smart, well-adjusted, and happy child. Because Dale and Carol did not establish that the loss of the relationship was likely to harm S.P., and therefore failed to rebut the statutory presumption that Summer’s decision limiting their visitation was in S.P.’s best interest, we hold that the trial court abused its discretion in awarding grandparent visitation. See Bowen v. Bowen, 2012 Ark. App. 403, 421 S.W.3d 339, petition for review filed (award of grandparent visitation reversed where grandparents failed to show that loss of the relationship would likely cause harm to their grandchildren).
Reversed and dismissed.
VAUGHT, C.J., and ABRAMSON, J., agree. | [
117,
-18,
-3,
124,
43,
97,
19,
22,
114,
-69,
99,
-45,
-81,
-60,
20,
123,
-69,
47,
97,
105,
-41,
-77,
7,
-32,
82,
-13,
-104,
-42,
-78,
89,
-89,
95,
72,
112,
-54,
-35,
70,
74,
-19,
-46,
-122,
2,
9,
109,
80,
-42,
60,
123,
90,
79,
53,
-82,
-13,
-82,
28,
-22,
40,
14,
93,
-65,
8,
122,
-114,
7,
95,
4,
-79,
116,
-70,
-89,
120,
44,
28,
25,
-128,
-8,
115,
-90,
-126,
100,
79,
-103,
8,
113,
102,
-95,
44,
-25,
-104,
-88,
94,
126,
-67,
-90,
-102,
121,
11,
13,
-65,
-68,
104,
-48,
78,
122,
-25,
-51,
50,
-12,
0,
-50,
-108,
-95,
4,
-8,
-128,
50,
-29,
-59,
112,
113,
-49,
-32,
85,
-57,
51,
-101,
-114,
-73
] |
JOHN B. ROBBINS, Judge.
| !This is a dependency-neglect case involving a five-year-old boy named I.S. The child’s parents are appellant Aaron Stoliker and Kyra Stoliker, who is not a party to this appeal. Also involved in this case are the paternal grandfather, David, and the maternal stepgrandfather, Ken, with whom I.S. has had considerable contact. Aaron is appealing from an adjudication and disposition order entered on December 8, 2011, wherein I.S. was adjudicated dependent-neglected. Aaron’s primary argument is that the trial court erred in removing the child from his home based on its finding of dependency-neglect. We affirm.
The background facts of this case are as follows. I.S. was born on November 24, 2006, and Aaron and Kyra married about a month later. Aaron and Kyra subsequently divorced in December 2009. Aaron was awarded custody of I.S., and Kyra was given standard visitation. Neither Aaron nor Kyra has remarried.
12This case was initiated on October 3, 2011, when appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect. Attached to the petition was an affidavit by DHS caseworker Tiffany Harper. The affidavit disclosed that Aaron had recently called the hotline and reported that I.S. had been abused by his mother and maternal stepgrandfather during one of his visits. Specifically, it was reported that Kyra and Ken had hit and poked I.S. in the head, and that Ken had sexually abused him. In a subsequent investigative interview with the child, I.S. reported that Ken pees in his mouth and that his mother hits him on the head with a plastic green bat. The affidavit asserted that both of these allegations had been investigated multiple times before and that each report of abuse was unsubstantiated, with I.S. recanting the prior allegations of abuse and saying that he lied. The affidavit further asserted that there were allegations that Aaron and his father, David, were fabricating their allegations of abuse to keep I.S. from visiting his mother. Ms. Harper indicated that DHS took an emergency hold on the child due to possible child maltreatment and concerns about both the home of the mother and the father. Ms. Harper stated that allegations of abuse in the mother’s home and allegations of mental abuse and cruelty in the father’s home, with no clear indication of who was telling the truth, made it impossible to leave I.S. in the care of either parent. On October 4, 2011, the day after DHS filed its petition, the trial court entered an ex parte order for emergency custody finding that immediate DHS custody was necessary to protect the health, safety, and welfare of the child.
| a A probable-cause hearing was held on October 5, 2011, and Tiffany Harper testified at that hearing. Ms. Harper stated that DHS took emergency custody of I.S. for the reasons stated in her affidavit regarding possible abuse. Ms. Harper was concerned about Aaron’s allegations that Kyra and Ken had abused the child, and she was also concerned because there was a prior true report on Aaron and David for mentally abusing I.S. Ms. Harper testified that Aaron acknowledged making numerous prior calls to report suspected abuse of 1.5. while in his mother’s custody. The records showed a total of seven hotline calls raising allegations against the mother, all of which were unfounded except for an environmental-neglect finding in 2009 that has since been removed from the registry due to the age of the finding. Ms. Harper expressed concerns about both of 1.5.’s parents, but she said that she did not know whether I.S. had been abused. Ms. Harper indicated that during previous investigations there was evidence, as confirmed by I.S.’s therapist Wendy Black-wood, that Aaron was coaching the child. Ms. Harper stated that there was a danger of mental abuse if Aaron was coaching I.S. and repeatedly telling him that he had been abused.
Aaron testified that both he and his father had made several calls to report suspected abuse allegedly perpetrated by I.S.’s mother and stepgrandfather. Aaron said that the calls were made after I.S. had told them specific details about being abused.
Kyra testified at the probable-cause hearing that she was presently employed as a live-in nanny, but that she soon expected to get a full-time job at a company called Molex. Kyra |4stated that she has many family members available and ready to take temporary custody of I.S. should the need arise.
On October 11, 2011, the trial court entered a probable-cause order, finding that probable cause existed to protect I.S. from severe maltreatment and that it was in his best interest to remain outside the custody of his parents. Temporary custody of I.S. was placed with his paternal grandmother, Holly Stoliker, and both parents were given visitation supervised by DHS. Additionally, the trial court ordered that there be no contact between I.S. and either grandfather.
Aaron Stoliker testified first at the adjudication hearing held on November 29, 2011. Aaron stated that he had concerns that I.S. was being abused during visitation with I.S.’s mother. Aaron said that he had spoken with I.S. about the alleged abuse, and that Aaron’s father had made video recordings of some of those conversations. These recordings were admitted into evidence. According to Aaron, neither he nor his father badgered I.S. or suggested what his answers should be to their questions during their interviews. Aaron conceded that he did not believe that the questioning shown in the recordings was appropriate, but he said that they were trying to get proof of I.S. saying that he had been abused. Aaron thought that he or his father had made about nine reports of abuse against Kyra and Ken, and he said that every report was unsubstantiated. However, Aaron stated that when I.S. tells him about abuse, he has to report it to the hotline or else get in trouble. Aaron admitted that there had been two prior true findings of abuse against him and his 1 ^father for putting I.S. through the interview process. Aaron stated that his father has lived with him to help care for I.S., and that he permits his father to interview I.S. and record the conversations. Aaron acknowledged that in one of those recordings his father placed I.S. in the corner as punishment, and that Aaron stood by while his father yelled at I.S., who was trembling.
Wendy Blackwood, I.S.’s therapist, stated that Aaron brought I.S. to her because he thought I.S. was being abused. Ms. Blackwood has counseled I.S. frequently and she expressed concerns about both Aaron and David, stating that they seemed to be coaching I.S. on what to say during their sessions. Ms. Blackwood testified that Kyra was also present during her counseling of I.S., and she said that Kyra was cooperative and behaved appropriately with I.S. Ms. Blackwood stated that she requested that David stop attending the sessions because he would coach I.S. and say things such as, “tell Ms. Wendy that mom hit you, tell Ms. Wendy what we talked about in the car,” and then provide details for I.S. Ms. Blackwood stated that this was confusing to I.S. and that if this continued I.S. could suffer emotional damage. Ms. Blackwood also said that I.S.’s repeated investigatory interviews have caused him psychological distress, as well as behavioral and sleep problems. Ms. Blackwood stated that David can be intimidating, and that I.S. does not want people upset with him and wants to please the important people in his life. She thought that if David were removed from the household, Aaron would do very well parenting his child.
| fiJoni Clark is a criminal investigator with the Faulkner County Sheriffs Office, and she investigated the allegations of abuse. Investigator Clark stated that the allegations included the mother anally penetrating I.S. with toys and urinating and defecating on I.S.’s feet. The allegations also included purported sexual abuse by Ken. After conducting her investigation, Investigator Clark concluded that this was a “horrible” case and that I.S.’s father was at fault. She recommended that charges be filed against both Aaron and David for endangering the welfare of a minor or permitting abuse of a child. Investigator Clark said that this was one of the worst cases she has investigated as far as coaching a child, and she thought that I.S. had suffered mental damage from what had been done to him.
Investigator Tollece Sutter of the Arkansas State Police was also involved in investigating the allegations of abuse. Investigator Sutter testified that the allegations against Kyra and Ken included sexual penetration as well as cuts, bruises, and welts resulting from abuse against I.S. Investigator Sutter stated that all of the allegations were unsubstantiated, and that as a result of the investigation she made a true finding of extreme and repeated cruelty to a juvenile against Aaron and David. In Investigator Sutter’s opinion, the repeated coaching and coercion of I.S. amounted to mental and emotional abuse, placing I.S. in imminent danger of being permanently mentally abused.
Tiffany Harper, the DHS worker assigned to this case, testified that DHS continued to provide reunification services to Aaron and Kyra. Ms. Harper said that the goal of DHS was reunification with Aaron. However, Ms. Harper also stated that she was pleased with 17Kyra’s compliance in this case, and that Kyra was cooperating and doing what was asked of her. Ms. Harper testified that she has visited Kyra’s home, that it was appropriate, and that there had been no findings of any neglect or abuse against Kyra other than the finding of environmental neglect more than two years earlier. Ms. Harper said that she did not know of anything that would keep the trial court from ordering temporary custody to Kyra.
Kyra testified that she has been cooperating with Ms. Harper and that she wants I.S. to live with her. Kyra stated that she has never abused her son in any way. She further stated that she has gained employment at Molex and has moved into her own home.
On December 8, 2011, the trial court entered an adjudication and disposition order. The trial court found that I.S. was dependent-neglected because he was at substantial risk of serious harm as a result of abuse and neglect by Aaron as well as Aaron’s father. The trial court specifically found that I.S. had suffered emotional abuse pursuant to Ark.Code Ann. § 9-27-303(S)(A)(iii) (Supp.2011), which provides that the definition of “abuse” includes:
Injury to a juvenile’s intellectual, emotional, or psychological development as evidenced by observable and substantial impairment of the juvenile’s ability to function within the juvenile’s normal range of performance and behavior[.]
The trial court further found that Aaron neglected I.S. by failing to protect I.S. from the abuse perpetrated by Aaron’s father, failing to provide a home free from emotional trauma, and failing to provide for I.S.’s emotional needs. See Ark.Code Ann. § 9-27-303(36)(A)(iii) & (iv) (Supp.2011).
|sThe adjudication and disposition order contains exhaustive findings supporting the trial court’s conclusion that I.S. was dependent-neglected, including the following observations:
It was undisputed that Aaron Stoliker (Father) and his Dad (Paternal Grandfather) routinely questioned the minor child when the minor child returned from visitation with Kyra Stoliker (Mother). It is undisputed that the Father and Paternal Grandfather would then record the minor child on video, asking questions about the Mother’s home and actions of Mother and others in her home. There is no question in this Court’s mind that the questioning and videotaping was emotionally traumatizing to the minor child. The questions were leading, threatening at times, and it was very clear that the minor child was being badgered, coached and encouraged to report negative behavior associated with his Mother’s home. In one of the tapes, the minor child ran up and placed his head in the Paternal Grandfather’s lap. The paternal Grandfather starts yelling at the child that he tried to kiss his penis. The child stood in his diaper crying in the corner and he kept saying I didn’t mean to and my head turned the wrong way and I didn’t mean to touch your penis. All this is going on with the video recorder going and Father standing in the room doing nothing to step in and console the child or stop the Paternal Grandfather from yelling at the child. The minor child clearly knew the videotape was playing. The minor child keeps saying “I didn’t mean to touch your penis.” The Paternal Grandfather would then ask the Father, “state what you heard him say” and the Father would state “I didn’t mean to kiss your penis.” It was uncomfortable for the Court to watch this child crying and saying it was an accident that he placed his head in his Paternal Grandfather’s lap and accidentally touched his penis (through his shorts). The paternal grandfather then announces that he is going to call the hotline again ... as if what occurred is proof the minor child has been abused.
The trial court expressed its concern that the inappropriate questioning would continue and found that it was damaging to the child. The trial court concluded that it was not in I.S.’s best interest to return to his father full time.
In the adjudication and disposition order, the trial court noted that I.S.’s paternal grandmother, who had been given temporary custody of I.S., discontinued taking I.S. to | flcounseling, and the trial court found that custody with her could not continue. The trial court placed I.S. in the custody of DHS and authorized an immediate trial placement with I.S.’s mother. The trial court ordered a home study of Kyra’s home and stated that, if it approved the home study, permanent custody would be given to Kyra because this would provide stability and be in I.S.’s best interest. Aaron was given standard visitation contingent on the paternal grandfather not being in the home, and the trial court ordered that there be no contact between I.S. and either of his grandfathers. The trial court also ordered that there be no further interviews or coaching of the minor child.
As an initial issue in this appeal, Aaron Stoliker argues that there was insufficient evidence for the trial court to enter the probable-cause order continuing the removal of I.S. from his home because emergency custody was not necessary to protect the child from immediate danger. However, probable-cause orders are not appealable. Taylor v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 725, 2010 WL 4345686. Therefore, Aaron cannot now challenge the trial court’s finding of probable cause to remove I.S. from his custody.
The primary point raised by Aaron on appeal is that the trial court erred in adjudicating I.S. dependent-neglected. This finding is appealable pursuant to Arkansas Supreme Court Rule 6 — 9(a)(1)(A).
The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark.Code Ann. § 9-27-325(h)(2)(B) (Supp.2011). The definition of a dependent-neglected juvenile includes any juvenile who is at substantial risk of serious |10harm as a result of abuse or neglect. Ark.Code Ann. § 9—27—303(18)(A)(ii) & (v) (Supp.2011). On appeal from a trial court’s ruling in a dependency-neglect case, we will not reverse the trial court’s findings unless they are clearly erroneous, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses. Arkansas Dep’t of Human Servs. v. McDonald, 80 Ark.App. 104, 91 S.W.3d 536 (2002). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.
Aaron Stoliker argues that the trial court erred in its finding that I.S. had been abused. Aaron disputes the trial court’s finding that he or his father coached or badgered I.S. about the suspected abuse by the child’s mother and maternal step-grandfather, and submits that their questioning of the child was simply aimed at getting to the truth. Aaron further posits that even assuming that he or his father were persistent in interviewing I.S. regarding the suspected abuse, there was no evidence of any injury to the child’s emotional development “by observable and substantial impairment of the juvenile’s ability to function within the juvenile’s normal range of performance and behavior” as required by Ark.Code Ann. § 9-27-303(3)(A)(iii) (Supp.2011). Aaron asserts that the testimony of I.S.’s therapist, Ms. Blackwood, demonstrated that I.S. had no functional impairment, and that the trial court’s findings of abuse and dependency-neglect were erroneous.
In We hold that the trial court did not clearly err in finding I.S. dependent-neglected on the basis of abuse. Aaron himself acknowledged making repeated allegations of abuse against Kyra and Ken, and said that each time the allegations were unsubstantiated. The trial court found that Aaron and David would record inappropriate interviews with the child that were emotionally traumatizing to I.S., with one of the recordings showing I.S. being yelled at and punished by David while Aaron did nothing to comfort the trembling child. These findings were supported by the evidence and confirmed by the video recordings. Because of their actions, there was a true prior finding by investigators that Aaron and David subjected I.S. to extreme and repeated cruelty-
While Aaron contends that there was a lack of any observable and substantial impairment in I.S.’s ability to function normally, we conclude otherwise. Investigator Clark testified that this was one of the worst cases she had seen as far as coaching a child, and she thought that I.S. had been mentally damaged as a result. Investigator Sutter testified that the coaching and coercion amounted to mental and emotional abuse that placed I.S. in imminent danger of being permanently mentally abused. And contrary to Aaron’s argument, I.S.’s therapist, Wendy Blackwood, did not testify that there was no impairment. She testified that I.S. was being psychologically distressed at times and that the coaching was not psychologically or emotionally good for I.S. And in a written report Ms. Blackwood wrote:
There are times when he becomes very anxious, as evidenced by hiding his face, crying, whining, becoming oppositional and refusing to talk. This typically occurs if the subject matter of the session is regarding abuse allegations about his mother. If his dad participates in sessions he often encourages I.S. to talk about being hurt by his | ^mother. This is usually phrased as “I.S. tell Ms. Wendy the truth,” “You promised to tell the truth, this time.” This seems to indicate that a conversation has occurred previous to the session about the subject matter to be discussed. I.S. often appears to try to please his dad by repeating or agreeing with his dad’s description of I.S.’s mother hurting him. However, he often becomes agitated especially if he is not saying what his dad has said. I.S.’s dad will often reprimand him by saying, “That is not what you told me or grandpa, why aren’t you telling the truth, I.S. stop lying.” He has impairments in relation to his current parental conflict issues and visitation schedule.
(Emphasis added.) Deferring to the trial court to judge credibility, on this record we cannot say that the trial court’s finding that Aaron and his father abused I.S. was clearly erroneous.
We further note that the trial court’s finding of dependency-neglect was also premised on its alternate finding of neglect based on Aaron’s failure to protect I.S. from David’s abuse and failing to provide for I.S.’s emotional needs. Aaron does not specifically challenge the trial court’s finding of neglect, and this alone would compel affirmance of the trial court’s dependency-neglect determination. Furthermore, we have little hesitation in concluding that the trial court did not clearly err in its finding of neglect based on the same evidence supporting its finding of abuse.
Finally, Aaron takes issue with the disposition ordered by the trial court wherein the trial court rejected DHS’s recommendation to reunify the child with him. Aaron contends that placing custody with Kyra is not in the child’s best interest and serves only to punish Aaron.
We hold that issues regarding the trial court’s disposition are not properly before us. Arkansas Supreme Court Rule 6-9(a)(1)(B) permits an appeal from a disposition order only if the trial court certifies that there is no reason for delay of an appeal in accordance with]^Arkansas Rule of Civil Procedure 54(b). However, there is no Rule 54(b) certification in either the transcript or addendum before us. Nor has there been any permanent custody placement. In the absence of a Rule 54(b) certification, a disposition order is not final and appealable. See Taylor, supra.
Affirmed.
VAUGHT, C.J., and ABRAMSON, J., agree. | [
-112,
108,
-19,
108,
11,
97,
58,
12,
67,
-41,
119,
-13,
-21,
-26,
5,
107,
75,
59,
81,
113,
83,
-77,
55,
65,
-14,
-13,
-72,
-43,
-77,
77,
-27,
-44,
75,
96,
-126,
-15,
98,
-54,
-11,
-108,
-118,
11,
-118,
124,
19,
2,
32,
-21,
26,
15,
53,
-98,
-73,
42,
-66,
-55,
104,
46,
89,
-91,
16,
34,
-53,
23,
111,
2,
-95,
52,
27,
79,
64,
6,
-116,
57,
-128,
-24,
50,
54,
-126,
116,
67,
-103,
-115,
101,
-30,
2,
41,
-25,
-12,
24,
-82,
62,
-99,
-90,
-104,
97,
3,
15,
-73,
-67,
88,
16,
46,
-6,
-5,
76,
50,
-28,
-122,
-118,
-108,
-103,
-115,
-72,
28,
34,
-25,
-121,
32,
117,
-117,
-112,
84,
-41,
50,
-101,
-122,
-14
] |
Eakin, J.
The appellee as guardian of three minors, BW., Pleas. T. and S. S. Taylor, for whom he had been appointed by one order, under one bond, brought this suit at law, against Turner, one of the sureties on the bond of a former guardian, who had been removed, and in whose hands the probate court had, upon a final settlement, found a balance separately due each of the minors. That is to say, to B. W. Taylor, $214,83, Pleas. T, Taylor, $214.83* and to S. S, Taylor, $119.83. The former guardian was insolvent, and the other surety was dead.
The complaint alleges that the former guardian was duly appointed for the minors, by name, on the fifteenth of March, 1878, and that he became qualified thereto by the execution at the time, of the bond upon which suit was brought; but shows that, in the bond, the names of the minors were not duly filled in. The bond being in all other respects regular, described each of the three minors as ---- Taylor, blanks being left for the initials. The copy of the judgment of the probate court incorporated in the complaint, finds the indebtedness to the several wards as above-set forth, and orders payment to the successor of two of them only. The omission of the other is not noticed by counsel, and was obviously a clerical error. The plaintiff ■demands judgment in his own name for the sum total, for the use of his wards in their several proportions.
Turner demurred, 1st. Because the plaintiff had no -legal capacity to sue. 2d. On account of defect of parties plaintiff, 3d. The same as to parties defendant, and 4th, generally.
The demurrer was overruled and the defendant declined to answer further. It was referred to a jury to ascertain ■the truth of the alleged breaches of the bond and to assess damages. They found for the plaintiff, for the use of B. W. Taylor, $195.50; for the use -of Pleas T. Taylor, .$195.50, aud for the use of S. S. Taylor, $100.50. Judgment was rendered for the aggregate amount, distributing ■the uses, however, according to the verdict. There was a motion for a new trial, a bill of exceptions, and appeal.
The questions presented by the transcript are:
, 1. Can a guardian sue in his own name, but disclosing the name of the ward, and professing to act in a fiduciary capacity; or must the action or suit be in the name of the ward' by guardian ?
2. In either case, can the separate interests of each ward be blended in one suit upon a bond given to secure them?
3. Is the bond set forth valid?
The verdict is supported by .the evidence, and if there be no objection to the judgment, arising from the points above stated, it must be sustained.
Disposing first of the last enquiry as determining the case, if answered in the negative, we find the bond set connection with the averment that the guardian Was on that day appointed by the probate court, as the guardian of the three Taylor children, giving their names ; and that he filed this bond as such. The demurrer admits the facts.
No parol evidence is necessary to reveal the full and certain meaning of the bond, in connection with the admitted or *ders of the probate court which are matters of record. It is unmistakably evident that it was given, and intended, to ■secure fidelity in the management of the property of the three children for whom he was that day appointed. The •omission to fill the blanks was doubtless accidental, but certainly immaterial.. There is no ambiguity where a judge can understand .the instrument, with all the light afforded by collateral facts and circumstance, Greenleaf on JEJv., •secs. 298-300. The bond was valid, and as effective as if ■the guardian had executed three several bonds to secure •each of his wards respectively. The latter is the better practice, as the accounts., and settlements should be separate ; •and the guardianship., should be kept distinct from each ■other. Yet, where no injustice has been done, this court •does not avoid the action of the probate courts for want of •due form, in matters within their jurisdiction.
As to plaintiff’s -capacity to sue: At common there was no warrant, nor authority for a suit by a guar•dian in his own name for the benefit of the infant, although he might disclose his fiduciary character and purpose. Common law courts did not enforce trusts, nor impose them upon the fruits of their judgments. A judgment like this now in question would have been at common law an anomaly. It resembles a decree in chancery. At law the action must have been brought in the name of the party having the legal right. The guardian could of course •sue upon contracts made with himself; but not generally, for propei’ty or money of the infant. The latter was required to be a party to the action, which at first, he brought by guardian.; and afterwards, by statute, might bring by yproohein ami. In the case of Stewart v. Grabbin, 6 Mun., 280, the supreme court of Virginia reversed a judgment, rendered in favor of a guardian in an action brought by himself, upon the ground that the action should have been in the name of the infant. That was trespass for an assault and battery on the infant; but there is no difference, in principle, between such an action, and one for a money demand for breach of an obligation. Such was the practice of this State before the code. /Sec. 4472 of Gantt’sDigest, being 28 of the Civil Code, provides that “an executor, administrator, guardian, trustee of an express trust, etc., * * * may bring an action without joining with him the person for whose benefit it is prosecuted.” It is further provided by sec. 4491 of Gantt’s Digest, (sec. AS' of the Code), that “the action of an infant must be brought by his guardian or his next friend.” The last is-but the ordinary expression of the common law rule, as altered by ancient statute; and we have the authority of Mr. Newman for saying that in Kentucky, from which State our code was taken, the old rule still prevails, and that “the action of an infant must now, as formerly, be brought in in the name of the infant by his guardian or next friend.” This construction would confine the operation of the section first above quoted to cases where the contract is- made with the guardian for the benefit of the infant, and in such cases to make an exception to the general provision , that the action must be brought in the name of the party really* interested.
On the other hand it has been held in New York, under-similar provisions, that a guardian may sue for an infant in his own name as such, being considered a trustee of an-express trust, (1st Waite’s Practice referring to 56 Barb,. 197., and 8 Id., 52.
Considering that the guardian alone has the right to receive the whole sum in solido, there is much force in the view that he is a trustee of an express trust, and we are not disposed to hold it reversible error, that he was allowed to-prosecute the suit, as plaintiff, for the use. of the wards, instead of requiring the wards to be made plaintiffs, by guardian ; although we are of opinion that the old practice- in such cases had better be preserved. The expression of the trusts under which he is to hold the proceeds when collected, should not vitiate the judgment.
It is not necessary to consider the question of misjoinders. J u J of actions. That cannot be met by demurrer, but should have been met by motion to strike out. Without such tion it must be considered as having been waived ; saving always to the court the right, in its discretion, to refuse to proceed with the litigation in one suit of matters wholly disconnected, and affecting parties having no community of interest. Whether there was or not, strictly speaking, a misjoinder, this is not one that, in the interests of justice required the exercise of that discretion. The wards substantially, though not in form, occupied the position of joint obligees, who may join in an action for the recovery of separate sums, upon breach of the conditions of a bond, (see secs. 4552-4553 of Gantt’s Digest, Riley et al v. Norman, adm’r., 39 Ark., 158; and on the last point, McLeod v. Scott et als., 38th Ark., 72.
Substantial justice has been done.
Affirm. | [
-16,
108,
-40,
61,
26,
32,
40,
-70,
-13,
-45,
53,
-45,
-85,
-25,
16,
99,
87,
105,
-44,
106,
118,
-73,
19,
96,
-46,
-77,
-31,
-59,
-79,
108,
-26,
-35,
76,
56,
2,
-43,
66,
-126,
-55,
-48,
-114,
9,
-102,
-31,
-103,
2,
54,
117,
17,
71,
113,
-66,
-77,
35,
61,
111,
72,
46,
-23,
-87,
80,
104,
-120,
5,
-1,
86,
-112,
69,
-102,
79,
-64,
38,
-128,
61,
2,
-24,
115,
-74,
-122,
118,
43,
-103,
8,
118,
98,
32,
-123,
-31,
-40,
-116,
46,
62,
-97,
39,
-73,
8,
11,
77,
-74,
-99,
116,
20,
39,
124,
-8,
-100,
92,
60,
-95,
-53,
-106,
-127,
-83,
-70,
-100,
-101,
-29,
-107,
48,
81,
-52,
-94,
92,
103,
58,
-111,
-113,
-22
] |
Eakin, J.
By written agreement bearing date the first •of January, 1876, Joseph Molen, for the express consideration of two hundred dollars, bound himself, within thirty days after he might acquire from the United States, a '.patent or title thereto, to convey to Wm. H. Gaines an undivided half interest in two lots in the town of Hot •Springs, Garland county. They are described as lots numbered fifty-nine and sixty, iu Smith Scogins’’ survey of •Gaines’ Addition to said town; and it is recited that said •Gaines had, that day, sold and quit-claimed them to said .Molen.
To enforce a specific performance of this agreement, this bill was filed on the sixth day of July, 1880, by Gaines and wife, alleging that about the first day of January, 1876, ■they were the owners of said land, and in effect, that they were in position to have been entitled to purchase and .secure title to the same from the Federal Government under the provisions of the subsequent congressional act of March .3, 1877, iu pursuance of which a new survey and plat of the lands had been made by the commissioners, so that .the •■same property is now described as lot No. 4 in block No. "79. That being so entitled, complainant, Wm. H. Gaines, •sold his interest in the property to Molen for the nominal consideration of four hundred dollars ; the real consideration being the said written agreement; and that subsequently, on the first day of December, 1880, Molen had, by virtue of said conveyance, obtained from the Hot Springs commissioners the right to purchase said land, and had ■afterwards refused to comply with his agreement: but to avoid performance, had, on the twenty-fourth of May, 1880, conveyed the property to his wife, Louisa Molen, for the pretended consideration of two hundred dollars. There is a prayer for cancellation of this deed, and for general relief.
The deed from Gaines to Molen is exhibited with the agreement. The allegations concerning the deed of Molen to his wife, were evidently erroneous, and need,not be further noticed.
Defendants answered, and denied that complainants were owners on the first of January, 1876, or entitled to purchase, under the act of congress ; or that the consideration of the deed from Gaines was the written agreement to reconvey one-half ; or that Molen, by such conveyance, secured the-right to purchase from the commissioners, claiming that, he secured this right by virtue of his own .improvements. They say the only pretence of right which Gaines ever had. to the land, was as agent of the heirs of Ludovicus Belden,. under a certificate of entry of the quarter section upon which- it is situated, which had been held by the courts to. be void. That, having that, he had verbally agreed in the-latter part of the year 1875, that defendant Joseph Molen. might take possession of it and make improvements and have all the resultant rights therefrom, and that he, the defendant Molen, did proceed to make improvements, and built a house. He says further, that in May, 1876, when efforts-were being made at Hot Springs to procure the passage by congress, of a law authorizing those having improvements-on lands iu Hot Springs, to purchase the same, Gaines notified him of the anticipated enactment, and advised him to reside upon the land, which he did. He says that Gaines-proposed to him, that if he would thus reside upon the land to strengthen his claim, and apply to purchase under the anticipated law, and acquire title, and would then convey to Gaines a half interest, he would on his part assist Molen with evidence iu establishing such, his right — suggesting thei propriety meanwhile of keeping the agreement secret, lest a knowledge of it might prejudice Molen’s chance of acquiring permission to purchase. To this said defendant agreed, ■and he says that on the fifteenth of May, 1876, Gaines ■executed to him the deed exhibited with the complaint, antedating it to January 1st in order to give it the appearance of having been executed before the twenty-fourth day ■of April, 1876, at which time the claim of the complainant to the whole of the lands claimed under said certificate had, in a direct proceeding, been held void by a decision of the ■supreme court of the United States. He says his agreement to convey half was executed at the same time. He says that when Gaines previously gave him permission to improve the land, he spoke of a like arrangement, and when the writings were made insisted that such had been the original arrangement. He insists that the purpose of Gaines in making the conveyance to him, and in keeping secret the written obligation of defendant to reconvey half, was to evade the policy of the law, and to make his own evidence more ■efficient in establishing the claim in defendant; and that therefore the written obligation was not filed for record until the right of defendant to purchase had been adjudicated by the commissioners. He says he filed his application to purchase in 1877, based on his improvements, which application was supported by the testimony of Gaines before the commissioners. He denies that there was any other consideration.
Further, defendant says that although he has obtained the ■certificate of the commissioners, fixing his right to purchase said lands from the United States, yet that he has not done ■so ; and that the United States has never issued a patent, nor been paid for the same.
By an amended answer he says further, that complainant made no application to purchase said land from the commissioners within the time prescribed by the act, and is therefore bai’red.
Also that complainants made application to purchase-adjoining and surrounding lots, as agents and attorneys of Belden, and denies that' Gaines individually had any such interest in the lot in controversy, as he might lawfully convey to defendant as the basis of the written agreement relied on. There is also a claim of homestead set up by defendant.
With regard to the first and third of these additional defences, it may be well to say at once, that they amount to nothing. If the circumstances under which defendant obtained his right to purchase were such as to raise a trust that he should hold his title thus acquired, as to a half, for the-benefit of complainants, there was no necessity for an application by Gaines. Such an application would have conflicted with that of defendant, and have been in bad faith. Nor in such case could the claim of homestead have been made available. As to the second, setting up Gaines, fiduciary character, it could only be important in connection with the proof, in determining whether or not the heirs of Belden should be made parties, or entitled to enjoy the benefits of any trusts which might be decreed.
The first question which arises is, has the defendant any such interest in the subject matter; any such estate legaj or equitable, in the lots, as can be made the subject of specific performance? In other words, can- he perform in any of the modes which a court of chancery will coerce?' If not, the whole enquiry as to the rights of complainant,, is useless.
We think it could not be doubted on principle, that the-courts of the state may, without conflict with the act of congress, impose upon legal titles derived through it, any trusts which, according to equity principles they might, impose upon estates or interests derived from other sources. When the commissioners have adjudicated the right to purchase, and j;he sale has been perfected, the whole scope and policy of congress with regard to these lands will have been' fulfilled. The lands pass thenceforth into the great mass. of property subject to the state jurisdiction, provided only that the validity of the adjudication made by the commissioners, and the patent of the government be recognized as matters not to be questioned.
The law itself seems to recognize some equity in the-claims of those who had made improvements upon these long disputed lands before the twenty-fourth day of April,. 1876, when it was decided by the supreme court of the United States that the title was still in the government. With regard to these, commissioners were appointed for this and other purposes, were directed to hear proof offered-by them of improvements and occupancy, and determine-the right of each claimant or occupant to purchase the same- or any portion thereof at an appraised value to be fixed by the commissioners, and to grant a certificate accordingly. This certificate conferred upon the claimant the right, at his-option, and upon conforming to certain regulations of the act, to purchase the land within a certain time, or to remove-his improvements. He -was to be subject further to such regulations as the Secretary of the Interior might prescribe,, in exercising the right. By the terms of the act, the right to purchase was given to “the claimant or occupant, his-heirs, or legal representatives.” No express provision is-made for his assignee, or the vendee of the improvements,, or a subsequent occupant under or through the original claimant.
The act makes it the duty of the commissioners to file,. without delay, their report in the office of the Secretary of the Interior, and makes it his duty within thirty days after to instruct the land officers at Little Eock to allow such land, to be entered, and to cause a patent to be issued therefor, of which the land officers are to give twenty days notice. At any time within twelve months of this notice, the claim ant to whom the certificate was granted may enter and pay for the land at the price fixed by the commissioners. In case he should fail to do so, then such lands, together with all the lands that no one has an adjudicated right to purchase, must be sold to the highest bidder at public auction, for not less than the appi’aised value. Then it is provided that any claimant or occupant who does not desire to purchase the lands adjudicated to him at the fixed valuation, may, within the time fixed for payment, remove the improvements.
There is no allegation that the defendant Molen has availed himself of this privilege. Nothing in the transcript to show that the payment has been made, or whether the opportunity remains open or has passed away. * The proof is equally silent. This case must be considered as if the defendant held only the certificate. The defendant Molen, by his answer sworn to on the ninth of July, 1881, says that he had not paid then, and the patent had not been issued. We are not advised when the certificate was issued, the date given in the transcript being obviousty erroneous.
It is not every equitable right which one may have concerning land, which rises to the dignity of an equitable title. For instance there is a large class of rights which spring from the rights of subrogation, marshalling and equitable liens. The defendant Molen has, or had at the commencement of this suit, perhaps, a certain right regarding these lots, but certainly no legal title. The question narrows to this ; did the right amount to an equitable title — one which a court of equity could effectually divest him of and give to another in the exercise of any of its known remedial processes. Courts of equity cannot risk the humiliation of being legally defied, and never attempt that which, in theory, they cannot enforce. If we were to concede, as we are inclined to do, that the matter of obligation of defendant is legally binding, and not in contravention of the law of •congress, and such as might on breach, be made the subject •of an action for damages, still in casting about to devise a •scheme for affording equitable relief upon the pleadings, a chancellor would be involved in grave perplexities. If he were to order that Molen execute a deed to Gaines for a half interest, he would do a futile thing, for Molen has nothing but a personal right to purchase which will be lost by a short lapse of time, if not already gone. Of what avail would an order be divesting Molen of a half interest and vesting it in 'Gaines? Its effects could not reach beyond a year from the date of the land agent’s advertisement. After that the United States government, or a purchaser under it, if Molen should not purchase, would take the land. An order to the land agent or any other federal ■official on payment of the money to execute or procure a patent to Gaines and Molen jointly might and should be disregarded. If Molen should be ordered to pay within the time, and thus obtain a title, how can that be enforced? The complainants do not offer to advance the money, nor advise the court how much is necessary. It may be that .Molen has none, and chancery will not, if it could, compel a man to earn or borrow or beg money to carry out a mandatory injunction for enforcement of a contract. It is chary of making such injuctions in any case, but will sometimes direct expensive operations to repair a wilful wrong, such as a hurtful nuisance. I cannot recall a precedent, or find a principle, for compelling one to purchase lands for the purposes of specific performance. To make an order •declaring a trust in the future if Molen shall exercise the option of purchasing would be trifling with its powers, as he might, on that account, obstinately refuse to purchase at all, in time.
There is but one solution of the difficulty, and that is found in the .conclusion that as yet Molen has no title legal >or equitable, but only a right, which he may exercise or not at his option, and which option is beyond the control of the-court. The condition upon which the conveyance was to-be made has not arisen.
The chancellor upon hearing dismissed the bill. This-■was proper. It was at least premature. We do not mean now to question the power of a State court of equity to affix a trust upon a title derived through the Hot Springs-commissioners. No principle suggests itself to us fox-placing such titles on grounds different from those acquired, from the United States government through ordinary entries ; and it is commoxx to impose trusts upoix such titles-when acquired under circumstances from which, according-to well settled principles of equity, resultant or constructive trusts arise ; and to enforce trusts like this, expressly declared. What the merits of this particular controversy-may be under the evidence, wre do not determine. The bill should have been dismissed in any view as premature ; but without prejudice. The chancellor erred only in dismissing it absolutely. In all other respects the decree is correct-
Render the proper decree here, and let the costs of this-court be awarded against the appellant. The modification of the decree is in his favor to avoid the consequences of an ill-timed suit, but the decree is correct in substance, and it remains true that he has troubled the court unnecessarily. | [
114,
105,
-7,
31,
-70,
96,
42,
-78,
106,
-86,
116,
123,
-23,
92,
12,
113,
-29,
33,
-44,
105,
-26,
-78,
67,
70,
-110,
-109,
-53,
-43,
-77,
73,
-76,
-41,
72,
32,
-54,
29,
70,
-30,
-51,
28,
-114,
-95,
-87,
96,
-37,
-64,
48,
37,
16,
75,
65,
47,
-15,
43,
125,
83,
105,
46,
-5,
41,
-40,
-24,
-65,
-100,
-3,
6,
-112,
98,
-112,
17,
72,
62,
-110,
17,
88,
-24,
119,
54,
22,
-10,
13,
13,
8,
98,
99,
43,
-59,
-27,
-48,
-100,
46,
115,
-115,
-90,
-14,
72,
35,
8,
-68,
-100,
29,
80,
35,
114,
-28,
-107,
28,
44,
-127,
-49,
-106,
-89,
15,
59,
-115,
19,
-13,
55,
36,
113,
-49,
-73,
77,
71,
48,
-109,
-97,
-71
] |
OPINION.
I. The complaint sufficiently alleged a personal cause of action against both of the defendants. Mrs. Chaffin, by failing to answer, admitted her personal liability, and on the trial the debt was well enough proved against her.
George Chaffin did not deny the debt in his answer, and, as a witness on the trial, he admitted his personal liability for it.
The pei'sonal júdgment against both appellants was, therefore, right.
II. The complaint did not. aver all the facts necessary to-constitute a material-man’s lien on the lots, nor pray judgfor alien. No compliance with the requirements of the statute to fix alien was alleged.
The complaint did not allege that within ninety days after the materials were furnished, or at any time, an account-properly verified, &e., of the demand, &c., with a description of the property to be charged with the lien, was filed in the office of the clerk of the circuit court, &c., as it should have done. Gantt’s Dig., sec. 4060, 4067 ; Ark. Gent. JR,. It. Oo. v. McKay, 30 Ark., 6S2; Hicks et al. vBranton et al., 21 Ark., 186.
The statute expressly provides that when suit is brought to enforce the lien, “the petition, among other things, shall allege the facts necessary for securing a lien under the act, and a description of the property charged therewith.” Gantt’s Dig., sec. 4066-7.
Mrs. Chaffin, by her default, did not admit that a lien had been fixed on the lots for the debt, for the necessary facts-constitute a lieu were not alleged in the complajnt. And . . the court erred in overruling the first assignment m the demurrer of George Chaffin.
No doubt the appellee intended to claim and enforce a lien in this suit, but his complaint ivas fatally defective for that purpose, and did not warrant so much of the judgment as is %n rem.
So much of the judgment as is in personam is affirmed, so much as is in rem is reversed, and the cause remanded with leave to appellee to amend his complaint if he shall elect further to prosecute the suit to enforce a lien upon the lots. | [
-80,
104,
-87,
-81,
74,
96,
56,
-38,
123,
-127,
-29,
-109,
-19,
75,
20,
33,
-16,
107,
81,
106,
87,
-93,
7,
97,
-10,
-77,
-15,
93,
-80,
77,
-28,
-34,
76,
48,
-62,
-43,
103,
10,
-123,
88,
78,
-127,
24,
96,
-7,
64,
116,
123,
20,
77,
113,
-114,
-13,
46,
17,
95,
9,
46,
43,
-67,
-48,
-16,
-97,
13,
123,
14,
49,
36,
-100,
69,
-54,
24,
-112,
49,
1,
-24,
114,
38,
-122,
84,
15,
27,
-120,
98,
98,
32,
105,
-19,
-68,
-120,
47,
-2,
15,
-90,
-92,
73,
-117,
97,
-74,
-99,
108,
0,
39,
-2,
-26,
-123,
92,
108,
39,
-114,
-42,
-79,
13,
116,
-98,
11,
-26,
-121,
-75,
112,
-51,
-22,
93,
66,
49,
-101,
-98,
-72
] |
Smith, J.
This action of unlawful detainer was begun on the twenty-second of February, 1882. The plaintiff alleged that he had leased his farm to the defendant for the year 1882 ; that the defendant agreed in writing to cultivate the land in a husband-like manner, and to deliver to the plaintiff one-third part of the crops to be raised thereon ; that the defendant, after obtaining possession of the premises, had notified the plaintiff that he would not cultivate the land, but intended to hold possession of the buildings without the payment of rent, or compliance with his contract ; and that the plaintiff had made demand, in writing, upon the defendant for the surrender of the premises. A writ of possession was issued at the commencement of the action, under which the plaintiff was put in possession.
To this complaint a general demurrer was sustained. And the plaintiff declining to plead further, a jury was empaneled, who assessed the defendant’s damages, by reason of being turned out of possession, at $150, for which final judgment was rendered.
The non-payment of rent is no cause of forfeiture of a lease, unless it is so expressly provided. The tenant can retain possession to the end of his term, though it may morally certain that his landlord will never receive any compensation for the use of the premises demised.
But the complaint alleges, and the demurrer admits, that the defendant has repudiated the obligations of his lease— that in words and by equivalent acts, he will not go forward with it.
Notwithstanding the term may not have expired, yet it is possible the further performance of the contract by the .landlord may be excused by conduct on the part of the tenant wholly at variance with the spirit. “Whenever one party to a contract refuses to execute any substantial part of his agreement, he thereby gives to the other party the option to rescind the entire contract by offering to restore what he has received and replacing the parties” in statu quo. Webb v. Stone, 4 Foster (N. H.), 282 ; Bishop on Contracts, sec. 677; Chitty on Contracts, 11 Ed., 1091.
This rule was applied in Miller v. Thompson, 22 Ark., 258, where Mr. Justice Fairchild observed: “The refusal of either party to abide by or perform his part of the contract, would justify the other party in treating it as at an end, and would entitle him to the rights that the law would have given him had there been no contract.”
If the facts are as set out in the complaint, the defendant had himself abandoned the contract. This authorized the plaintiff to disaffirm it, and to regain possession of his land by this summary process.
Reversed and remanded for further proceedings with directions to overrule the demurrer to the complaint. | [
-110,
-2,
-40,
79,
-38,
96,
40,
-104,
66,
-13,
39,
83,
-51,
-106,
0,
43,
97,
125,
81,
120,
-50,
-77,
70,
96,
-46,
-45,
-63,
-43,
-71,
79,
-11,
-43,
78,
52,
-62,
-97,
-58,
-112,
-127,
-40,
-114,
-127,
-119,
108,
-13,
64,
48,
27,
0,
79,
17,
-66,
-13,
46,
49,
69,
9,
40,
-17,
37,
-23,
-7,
-70,
12,
79,
7,
-79,
39,
-34,
3,
72,
108,
-112,
17,
1,
-24,
115,
48,
-122,
84,
15,
-101,
44,
102,
98,
0,
101,
-5,
-104,
-72,
46,
-70,
-103,
-90,
-48,
88,
27,
72,
-66,
-99,
126,
20,
-90,
118,
100,
12,
-107,
104,
3,
-49,
-42,
-79,
15,
-8,
-110,
3,
-61,
7,
33,
113,
-49,
-94,
92,
65,
115,
-101,
-113,
-39
] |
Smith, J.
McGehee sued the railroad company in trespass for entering upon and appropriating his land for a right of way. The cause was tried before a jury upon issue joined that the supposed trespasses were committed by leave and license of the plaintiff. There was a verdict and judgment for the plaintiff for four hundred dollars damages.
Upon the threshold of this case, we are confronted b.y a claim that the act of January 22, 1855, (Gould’s Dig., ch. secs. 1-4), as construed in C. & F. R. Co. v. Turner, 31 Ark., 494, is decisive and that the plaintiff’s sole remedy was by special proceedings under that statute to have his damages assessed in the first instance by five disinterested householders of the county. The Little Rock and Fort Smith Railroad Company was incorporated on the same day that this act was passed, and the corporation was. subsequently organized and the road partially built under the provisions of its special charter. But it appears from the defendant’s own pleadings and evidence, that prior to the trespasses in this action complained of, this railroad had been sold under a decree of foreclosure rendered by the United States circuit court for the Eastern District of Arkansas, and the purchasers at such sale had, under the general railroad incorporation law, formed a new corporation by name the Little Rock and Fort Smith Railway, which is the present defendant. Now the right of a railroad corporation to have the damages for the appropriation of land to its uses assessed in a particular mode is not a franchise which passes to a purchaser of its property. It is personal privilege of the company and not transferable. Morgan v. Louisiana, 93 U. S., 217; R. Co. v. County of Hamblen, 102 Id., 273; Wilson v. Gaines, 103 Id., 417; State v. Morgan, 28 La. Ann., 482.
Consequently the plaintiff might sue in trespass or other ° action an*d have his damages ascertained by a jury. Whitehead v. Ark. Cent. R. R. Co., 28 Ark, 460; Constitution of 1874, Art. XII., see. 9.
In support of its plea of leave and license, the defendant produced the plaintiff’s deed, executed in the year 1875, granting to it a right of way through the locus in quo, subject to the proviso that the road should pass along a specified route and be so located as not to interfere with the grantor’s ferry right. And in. 1876 the defendant had entered upon the land, had constructed its road-bed and had laid its track upon the liue indicated and had so continued to operate its road until November, 1878, when, without the plaintiff’s consent and without compensation to him, it abandoned its original route and bulit an incline through the plaintiff’s land from the main bank of the Arkansas-river to low-water mark. This incline was 1250 feet ini length up and down the river, with a wharf or steamboat landing at its foot, and the company used a steamboat for-transporting its locomotives across the river. The incline was, in fact, a section, part, or continuation of the defendant’s railway. It did not pursue the route described in the deed along the high land on the river bank, but descended by a gentle grade to the -water’s edge ; thus obstructing the approach to the river and injuriously affecting the ferry privilege. The plea of license is therefore not sustained by proof and the plaintiff’s right to recover some damages is-unquestionable.
This brings us face to face with the substantial question and real bone of contention in the case, viz : the amount of compensation which the owner of the land condemned is entitled to receive and the principle upon which it is to be estimated.
The evidence was that McGehee owned the river front for a quarter of a mile on the eastern or northern bank ; that it was a rocky bluff, entirely unfit for cultivation or human habitation ; that the land actually taken was only three or four acres, insusceptible of use for any profitable purpose except as a ferry landing; that the construction of the incline had practically destroyed its value for this last men tioned purpose by obstructing the approach to the river; that no ferry had ever been established or operated on the plaintiff’s land, and no license had been granted by the county court for such a ferry, but it was a very eligible site for a ferry by reason of the deep water at that point; that the plaintiff’s land was less than one mile distant from the licensed ferry at Van Burén, which had been in operation •ever since territorial times ; that there was no public highway leading from any point to the land, but one could be constructed at a moderate expense from the town of Van Burén or from the Fayetteville road ; that the Van Burén ferry labored upder great disadvantages both at high and low stages of the water, on account of sandbars in the bed of the river and difficulties in the way of lauding its boats ; that the sole value which the plaintiff or anybody else attached to this tract of seventy-six acres, traversed by the defendant’s incline, was on accouirt of its suitableness for the establishment of a ferry; that he had always destined it to this use, and had once leased it for five years with a condition that the lessee should obtain a license and establish a ferry there within two years, or else surrender the premises ; and that the plaintiff in granting the right of way to defendant over his land had expressly stipulated that the company should run its road along the high land so as not to interfere with the plaintiff’s ferry right. The value of the land, before the construction of the incline, with the. privilege of applying to the county court for a ferry license, was variously estimated from five hundred dollars to five thousand dollars, and its value since was nominal, say one hundred dollars.
The defendant moved to exclude all evidence relating to the feasibility of establishing a ferry from the plaintiff’s land to the opposite bank. And it here contends that the adaptability of the land for the purpose of a ferry was not a proper element for consideration in estimating the value of tbe land condemned, assuming that such adaptibility could never be made available to the plaintff by reason of supposed exclusive privileges in the proprietors of the Van Burén ferry ; or if it was competent for the county court to license a rival ferry near the town of Van Burén, that it was •extremely problematical whether, if the incline had never been built, such license would have been granted and a ferry established by the present or any future owner of the land, and consequently the damages were too remote, speculative and inestimable by any standard approximating correctness.
A similar question came before the supreme court of the United States, in Boom Co. v. Patterson, 98. U. S., 403. The Boom Company was a corporation created under the laws of Minnesota to construct booms between certain •designated points on tbe Mississippi and Rum rivers in that •state. It was authorized to enter upon and occupy any land necessary for properly conducting its business; and where such land was private property, to apply to the district court of the proper county for the appointment of commissioners to appraise its value and take proceedings for its condemnation. Patterson was the owner of an island and parts of two other islands in the Mississippi river. The land owned by him amounted to a little over thirty-four acres, and the position of the islands specialty fitted them, in connection with the west bank of the river, to form a boom of extensive dimensions, capable of holding with safety from twenty to thirty millions of feet of logs. This land the Boom Company sought to condemn for its uses ; and upon its application commissioners were appointed by the district court to appraise its value. The case finally got into the federal court. The jury found a general verdict assessing the value of the land at $9.358.33, but accompanied it with a special verdict assessing its value, aside from any consideration of its value for boom purposes, at $300, and in view of its adaptibility for those purposes, a further and additional value of $9,058.33. The circuit, court, under a threat of new trial, compelled the plaintiff to-reduce his verdict to $5,500, and judgment was entered for that amount. Upon a writ of error, the judgment was affirmed. Mr. Justice Field, in delivering the unanimous opinion of the court, said : “In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted ; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to jnut it to any use. Others may be able to use it and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated. So many and varied are the circumstances to be taken .into consideration in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in ail cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that compensation to the owner is to be estimated by refer-1 ence to the uses for which the property is suitable, having-regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. The position of the three islands in the Mississippi fitting them to form, in connection with the west bank of the river, a boom of immense dimensions, capable of holding in safety over twenty millions of feet of logs, added largely to the value of the lands. This Boom Company would greatly prefer them to more valuable agricultural lands, or to lands situated elsewhere on the river; as by ■utilizing them in the manner proposed, they would save heavy expenditures of money in constructing a boom of equal' capacity. Their adaptability for boom purposes was a circumstance, therefore, which the owner had a right to insist upon ashn element in estimating the value of his lands.”
Our statute expressly recognizes in the owner of land ■fronting on a public.navigable stream the liberty or privilege of keeping a boat for the transportation of men, horses and •carriages with their contents.for a reasonable toll, to be regulated by the count}’’ court. This is, indeed, not an ’absolute right, since the public have rights and interests in :such a franchise; but a qualified right dependent for its exercise upon the consent of the state. And the power of determining whether a public ferry is demanded at any particular point by the necessities of travel and traffic is delegated to the county court. Gantt’s Dig., Ch. “Ferries;” Cloyes v. Keatts, 18 Ark., 19 ; Murray v. Menefee, 20 Id., 561; Bellv. Clegg, 25 Id., 26; Haynes v. Wells, 26 Id., 464.
But in this state there is no ferry franchise separate from ■the ownership of land. If public convenience requires a ferry at a certain place, the proprietor of the soil on one •or both banks of the stream, or one holding by, through, or under him is to keep it. This preference is an incorporeal hereditament appurtenant to the land, descendible to heirs, and capable of being leased, sold or assigned. It is, therefore, of some value, and if near a town, may be very valuable. Although no ferry may have ever been established there, it is possible, and may be probable, that a change of circumstances or the development of the country may require one in the near future.
Looking at all of the evidence, we cannot say that the jury placed an exaggerated estimate upon the injury inflicted upon the plaintiff.
It has been suggested that the satisfaction of the judgjo ment will not render the appropriation of the land legal, company will remain liable to a succession of actions of trespass as for a continuing nuisance. This consequence would follow if the company had no right to build its road. In that case the road would be a nuisance — a> perpetual nuisance; and every day’s continuance of it would be a legal wrong, for which the company would be liable in damages after they have accrued. If, however, the company has not transcended the authority constitutionally vested in it by the legislature, and yet, in constructing' its road, has necessarily injured the rights of others, it is-equally liable to respond for prospective as well as accrued-damages, and it cannot be vexed in a second action. Mahon v. N. Y. Cent. R. Co., 24 N. Y., 658.
Judgment affirmed. | [
116,
-6,
-72,
60,
-119,
96,
32,
-102,
97,
-29,
-92,
83,
-19,
4,
0,
41,
-29,
-3,
113,
59,
-28,
-93,
7,
35,
-110,
-109,
123,
69,
-74,
-55,
-20,
-42,
76,
48,
74,
-43,
71,
-56,
-51,
-100,
-114,
-88,
43,
109,
-55,
0,
60,
43,
20,
79,
113,
-66,
-14,
42,
25,
-55,
41,
46,
-49,
-84,
-48,
120,
-70,
69,
126,
22,
33,
100,
-101,
35,
-62,
12,
-104,
21,
-100,
-40,
115,
-78,
-105,
116,
45,
-103,
12,
34,
99,
34,
5,
-25,
94,
-104,
14,
-66,
13,
-90,
-26,
88,
67,
76,
-65,
-43,
114,
0,
14,
-6,
-26,
13,
17,
104,
-123,
-53,
-106,
-91,
-121,
-96,
-106,
3,
-21,
-121,
32,
112,
-58,
-94,
93,
71,
119,
-101,
15,
-48
] |
English, C. J.
In January 1872, Edward D. Jett conveyed to Joseph W. Paup, the undivided half of certain lands in Hempstead county.
In August 1874, Joseph W. Paup mortgaged his moiety of the lands to Brittin and Moore to secure the payment of a debt, and Mary T. Paup, then his wife, joined him in the execution of the mortgage. The mortgage empowered Brit-tin and Moore to sell the lands on default, and gave them the privilege of purchasing at the sale. Joseph W. Paup failing to pay the debt at maturity, the mortgage was foreclosed by sale under the power. Brittin and Moore purchased and conveyed the lands to Alfred O. Stuart, and he and Edward D. Jett made partition.
After the death of Joseph W. Paup, and after his widow, Mary T., had intermarried with Doctor Wallace E. Dutton, she brought this bill against Stuart and Jett for dower in the moiety of the lands of which her first husband was seized during their coverture, being the same lands embraced in the mortgage. The'chancellor decided, that-by joining her first husband in the mortgage, and acknowledging its execution in the form prescribed b3)' the statute, she had relinquished her dower right in the lands, and dismissed her bill for want of equity, and she appealed to this court.
The mortgage begins thus :—
“Know all men by these presents, that we, J. W. Paup and Mary T. Paup, his wife, for and in consideration of the sum of one dollar to us in hand paid, and the other premises hereinafter set forth, do hereb3^ grant bargain and sell unto Brittin and Moore, of New Orleans, Louisana, and to their heirs and assigns forever, the following property : the undivided half interest in the N. W. qr.,” etc., etc. Here follows a description of the lands, the debt secured by the deed, the power of sale, etc., on default, warranty of title by the husband, etc., and the deed is signed by the husband and wife.
Its execution was acknowledged by both of them befoi’e a justice of the peace. The officer’s certificate of the husband’s acknowledgment is in the usual form, and the wife’s .acknowledgment is certified as follows :—
“And on the same day, also voluntarily appeared before me the said Mary T. Paup, wife of the said J. W. Paup, to me well known to be, and in the absence of her said husband declared that she had of her own free will signed and sealed the relinquishment of dower in the foregoing deed for the purposes therein contained and set forth without compulsion or undue influence of her said husband,”
Counsel for appellant have earnestly submitted that the •deed was inoperative and of no effect as to her because it ■did not Contain a clause or words expressly relinquishing her right of dower in the lands.
The statute provides that “a married woman may relinquish her dower in any of the real estate of her husband, by joining with him in a deed of conveyance thereof, and acknowledging the same in the manner hereinafter prescribed.” Gantt’s Dig., sec. 839.
Sec. 849 prescribes the form of acknowledgment, which was followed in the acknowledgment of the deed in question, as shown by the certificate of the magistrate.
It was said in Meyer v. Gossett, 38 Ark., 380, that: £‘To make a valid relinquishment of dower, by the wife, in the real estate of the husband, she must join him in the deed of ■conveyance, and acknowledge it in manner prescribed by the statute. Gantt’s Dig., sec. 839.
“If she does not join him in the deed, the acknowledgment is of no validity. Nor if she join him in the deed, is there a valid relinquishment of dower without a proper acknowledgment of its execution by her. Both are requisite to complete the conveyance on her part,” citing pre■vious decisions of this court.
Conveyancers in this State have frequently inserted a clause or words expressly relinquishing the dower right of the wife, but it was not done in the deed in question, and may not have been done in many instances, and this court has never decided that it was requisite. It is safe to observe the requirements of the statute, and not to make additions by construction.
We cannot better answer the argument of counsel for appellant, than by quoting the language of Justice Hitch cock, in Smith & Wife v. Handy,.16 Ohio Ref., 232, a case very much like this in its facts. He said:—
“But it is said that there is nothing to show that the female-intended to release her right of dower. If she did not intend this, what did she intend? She had no other interest in the pi’operty than a contingent right of dower. Why did she join in the deed? Was it a vain thing? She must have intended that the deed should operate for some purpose, and so far as she was concerned, it would be entirely inoperative, unless it operated upon her right of dower. It is a well known rule that deeds shall be construed most strongly against the grantor, and the same rule must be applied to a feme covert, when she conveys in conformity to-the statute. If the statute is complied with, the conveyance is as effectual as if made by a feme sole.”
Decree affirmed. | [
-16,
107,
-40,
127,
106,
-16,
8,
-72,
-54,
-96,
-91,
87,
-7,
-46,
2,
61,
-96,
77,
-59,
108,
-90,
-74,
41,
98,
-112,
-109,
-85,
-59,
-16,
-35,
-26,
-41,
8,
32,
83,
29,
-28,
64,
-51,
92,
-98,
-64,
-93,
24,
85,
64,
48,
-85,
80,
72,
85,
-89,
-13,
44,
51,
108,
72,
46,
85,
41,
-48,
-86,
-98,
-124,
-5,
31,
-111,
117,
-8,
35,
74,
-50,
-104,
49,
8,
-24,
123,
52,
-58,
86,
71,
-103,
9,
32,
119,
16,
-19,
-3,
112,
-102,
47,
-10,
-19,
-122,
-11,
120,
82,
32,
-65,
-100,
93,
-64,
22,
116,
110,
-51,
12,
105,
-122,
-114,
-42,
-127,
15,
58,
-104,
1,
-9,
-49,
52,
113,
-49,
-86,
85,
103,
113,
-101,
-98,
-79
] |
Howard, E. A. Special Judge.
On June 4th, 1873, Oliver • •and wife borrowed from Eockafellow, four thousand dollars, and gave their note for that amount and a deed of trust with power of sale upon certain lots and blocks in the -city of Little Eock, the separate property of Mrs. Oliver. The trust has been executed as to some of the lands. This bill was brought to execute it as to the remainder. One of the parcels of land included in the deed of trust is lot No. ■two in block No. seventy in the city of Little Eock. Only .•so much of the decree as relates to this lot is appealed from.
Counts, one of the defendants, in his answer, states that he purchased this lot from Oliver and wife in February, 1873, .and that in April, 1873, they executed to him a bond for •title upon payment of the purchase money. He states that he took possession of the lot in February for the purpose of building a house ; that in March he began to have rock, lumber •and brick hauled and placed upon said lot; that during the ¡months of March, April and May, he was in open, notorious and visible possession of the same ; that he has paid all the pur chase money, and that afterwards Oliver and wife executed to him a warranty deed for the premises, He states that both the title bond and deed had been lost, and that complainant had notice of his rights when the trust deed was executed. He makes his answer a cross-bill and prays that the trust deed be cancelled in so far as it relates to this lot. and that his title be decreed good as against complainants.
The depositions of Counts, Clark and Cunningham show that Oliver and wife made title bond to Counts for this lot. about March, 1873. The depositions of Counts and Cunningham who was his attorney at law during these, transactions, show that this bond was acknowledged before a notary public by both of them ; that when Mrs. Oliver acknowledged it her husband was in the same room, but whether or not near enough to hear questions and answers witness cannot say; and that the certificate was in the usual form for acknowledgment by married women for conveyances of their separate property.
Proof was also made that Counts had possession of the lot in March and April; that he had hauled brick, stoner lumber and sand for mortar ; that he had built piers for a house and put sills and joists upon them and was continuing-the building when Rockafellow took the deed of trust. It was shown that the bond and deed were both lost.
The chancellor was satisfied with the evidence, and found that Counts had paid' for the lot in full and received a deed therefor from Oliver and wife from whom he purchased, and that his equity was superior to complainant’s, and decreed the relief prayed for in the cross-bill.
This court has repeatedly held that it would not disturb the findings of the chancellor upon matters of fact unless there was a decided preponderance of evidence against his judgment. We are unwilling to say there was such here.
It has been urged that this title bond was an executory contract made by a married woman and therefore invalid.. It may be this would not be binding upon Mrs. Oliver or her heirs. But there was no plea of coverture here ;' nor did Mrs. Oliver hesitate to make the deed upon payment of the purchase money.
The bond was not recorded. Had Rockafellow such notice of the equitable rights of Counts as to be charged thereby? The doctrine is well established, that where one is in open and visible occupancy or possession of land it is sufficient to put a subsequent purchaser or mortgagee upon notice. Hamilton et al v. Fowlkes et al, 16 Ark., 340. The chancellor found there was this notorious possession on the part of Counts.
The decree is affirmed.
Hon. J. R. Eakin did not sit in this case. | [
114,
121,
-8,
-4,
-38,
-64,
10,
-104,
107,
41,
33,
119,
-17,
82,
16,
105,
-27,
-7,
96,
107,
-45,
-78,
23,
99,
-14,
-13,
-37,
-35,
-75,
-51,
-9,
-41,
76,
32,
-54,
29,
102,
-56,
-31,
92,
-114,
1,
-118,
68,
-37,
64,
52,
63,
71,
73,
33,
26,
-77,
40,
60,
126,
40,
46,
75,
61,
80,
-6,
-67,
-113,
79,
19,
-125,
6,
-108,
67,
106,
-118,
-112,
117,
-120,
-24,
123,
-74,
6,
84,
3,
-117,
12,
38,
102,
16,
65,
-1,
-8,
-116,
62,
122,
-115,
-89,
-78,
72,
51,
42,
-66,
-99,
120,
80,
38,
118,
-18,
-123,
24,
108,
7,
-49,
-42,
-109,
-99,
56,
-100,
3,
-29,
11,
57,
96,
-49,
-94,
94,
101,
122,
27,
14,
-13
] |
Smith, J.
West and Davis brought forcible entry and detainer against Johnson and seven others for the east half of the northeast quarter, the southwest quarter of the north east quarter, and north half of southeast quarter of section one, township seventeen, north, range, thirty-four west, two hundred acres. The plaintiffs alleged that they were-the owners, and entitled to the possession of the land, and in peaceable possession when the defendants on or about the first of September, 1881, unlawfully entered upon and! forcibly took possession of the land, and do now forcibly and without right detain the same after lawful demand therefor. Security having been given, a writ of possession was issued at the commencement of the action and the-plaintiffs were placed in possession of the premises.
Three of the defendants answered, alleging that their co-defendants held under them and denying specifically the. allegations of the complaint.
On the trial it appeared that the lands were wild and. uncultivated. The plaintiffs claimed them by virtue of a purchase from one Elam, who himself claimed under a tax. title, but had never got possession. This purchase was evidenced by a bond for title, made July 22, 1881, Elam, agreeing to convey the legal title upon the payment of $1,000. On the twenty-fourth of July the plaintiffs went-upon the land, encamped there one or two nights, walked around the lines, gave a butcher, who had already established his slaughter-pen on the land, permission to-slaughter beef there ; employed a man to clear and fence five acres on the southeast quarter of northeast quarter of sec-tion one, and then returned home. The hired man about, the first of August shrubbed off about one-quarter of an acre in a retired spot, burnt the brush, cut timber,, made thirty-five rails and quit the place.
This seems to have been the extent of the possession the plaintiffs had up to September fifth,when the defendants Johnson and Griffith, entered, as lessees of E. P. Watson, upon the east half of northeast quarter of section-one. This tract of eighty acres Watson claimed by a title deduced from the original patentee ; but he had never taken possession. At that time there were no improvements-upon the land except the small patch of cleared ground above mentioned ; and even that escaped the observation of Johnson and Griffith for some time. There were no occupants and no signs of occupation. Between the -fifth and 'twelfth of September Johnson and Griffith hauled upon the land material for building a house. By the seventeenth a •-stone foundation had been finished, the sleepers laid, the .joistsput up, and a temporary shelter being erected over this foundation, Johnson and Griffith moved in. The house, ■in dimensions fourteen by twenty-four feet, was situated on the northeast quarter of northeast quarter of section one. In the morning of the day last mentioned, the noise ■of hammers was heard in a southern direction from the house. And in the afternoon Johnson and Griffith found •that some one had put up two sides of a small box-house, without floor or roof, on the southeast quarter of the ■northeast quarter. No one, however, was found near, and this being a part of the land they had leased, a notice was posted by them on the side of the house warning the makers of the new improvement to desist and leave the place, Johnson ami Griffith completed tbeir house, and were living in it, and preparing to fence and cultivate the land when they were turned out by the sheriff. The plaintiffs also proceeded to finish their box-house, and occupied it for a short time in the month of October, and fenced about seven acres on the northeast quarter of the northeast ■quarter, but finally returned to their homes, having locked the door and leaving some of their effects behind. After they had gone the defendants entered the house, •either by unlocking it from the outside or through a window, and put their co-defendant Triplett in the house as »their tenant.
The jury found the issues for the plaintiffs, and the ■defendants moved for a new trial upon the following grounds:
1. Misdirection of the court.
2. Verdict contrary to law.
•3. Verdict not sustained by sufficient evidence.
4-5. Verdict finds the defendants guilty of entering upon ¡and detaining with force the whole body of two hundred acres, whereas the proofs show that their entry and claim were confined to eighty acres.
6. The evidence shows no actual possession on the part ■of the plaintiffs at the time of defendants’ entry.
■ The record discloses that the court gave three tions, at the instance of the defendants and two of its own motion, and that both sides acquiesced in the enunciation of x the law applicable to the case. We therefore decline'to ■consider the first and second assignments.
The error alleged in the fourth and fifth assignments did 0 ■not prejudice the defendants. In this action, upon the ■execution of a bond, the possession is taken from the •defendant and delivered to the plaintiff at the outset; and ■if the plaintiff finally prevails, the judgment is only for •costs. Now, the defendants are not aggrieved by the delivery to the plaintiffs of lands in which the defendants have mo sort of interest; nor are the costs of the action ordinarily enhanced by including a larger quantity of land than is -■actually in dispute between the parties. Besides, the answer, while it shows that the defendants claim only a part •of the lands described in the complaint, does- not show what that part is.
In Fowler v. Knight, 10 Ark., 43, it was held that to maintain forcible entry and detainer the plaintiff is not bound to show that he was in actual possession when the defendant entered. But in McGuire v. Cook, 13 Ark., 449, in a luminous opinion delivered by Chiee Justice Watkins, this was overruled so far as it intimates that this action may be maintained upon a constructive possession, or ¡that when the entry is peaceable, if made without color of title, the law will imply force, or that the plaintiff may recover by showing his right to the possession,without proof that he has actual possession. The last mentioned case, ¿however, was itself afterwards limited by Bradley v. Hume, 18 Ark., 284, where it was held that unlawful detainer would lie at the suit of a purchaser of land which,, at the time of the purchase, was in possession of a tenant under a lease from the vendor, upon demand, after the end of the term. And this was followed by Frank v. Hedrick, 18 Ark., 304, and Halliburton v. Sumner, 27 Ark., 460.
The exception is more apparent than real. Unlawful, detainer is a remedy provided by statute for the benefit of landlords against tenants who hold over after the expiration of their terms. It is founded on the breach of a contract, implied by law, if not expressed, that the tenant shalL restore a permissive possession to the hands from which it was received. And the estoppel of the tenant to deny his-landlord’s title enures, both as to its benefit and burden, to-privies in law, blood and estate. Hence, the tenant can no more resist the title of the lessor when asserted by or in the hands of an assignee than when it was held by the lessor himself.
But a forcible entry and detainer is a tort, pure and. simple. Force is the gist of the action. It is a remedy designed to.protect the actual possession, whether rightful, or wrongful. It must accordingly be shown that the defendant did enter without the consent of the person having the possession in fact of the premises ; and that such, original entry or subsequent holding of possession was with force and strong hand. Constructive possession or-evidence that the plaintiff is entitled to possession is not sufficient. And implied force, as when the defendant, enters peaceably, though unlawfully, is not sufficient. Smith v. Laffery, 27 Ark., 46; Hall v. Trucks, 38 Id., 257. Furthermore, the plaintiff cannot maintain» this action upon a scrambling possession, as we decided in Anderson v. Mills, 40 Ark.
Now, it is quite clear that when the defendants made; their entry, the plaintiffs had not actual possession of the land or any part thereof. Perhaps neither of the parties had such a bona fide possession as to justify a resort to this summary remedy. To us it seems that both were maneuvering for position; each seeking to occupy the vantage ground of being defendants in an impending action of ejectment. DeGraw v. Prior, 60 Mo., 56; Voll v. Butler, 49 Cal., 74.
But if either party could maintain this action, it was •certainly not the plaintiffs. Their improvement, up to the ■date of tbe defendant’s entry, was merely nominal. The defendants, if they had observed it at all, would have had a right to suppose the project had been abandoned.
Hence the verdict was without evidence to support it on "the essential point of a substantial holding by the plaintiffs.
Again: There was no evidence of force used by the defendants beyond that which is requisite to constitute an ordinary trespass. They entered upon unenclosed lands, not occupied at the time by any person. It was done quietly and not tumultuously. No weapons, threats or intimidation were resorted to. And the subsequent taking possession of a vacant house was unaccompanied ‘ ‘by such words and actions as have a natural tendency to excite fear •or apprehension of danger.” Nor does the refusal of the defendants to get out of the house, unless put out by law, make them guilty of a forcible detainer. See Butts v, Voorhees, 13 N. J., (1 Green’s Law Rep.) 13; same case, 22 Amer. Dec., 489, decided under a statute from which ours seems to have been copied ; Hopkins v. Calloway, 3 Sneed, 11, which was quoted with approbation by this court in Keller v. Henry, 24 Ark., 575.
Reversed and remanded for a new trial. | [
-15,
-29,
-20,
31,
8,
-32,
40,
-70,
-53,
-30,
-90,
83,
-51,
18,
9,
37,
-29,
125,
21,
105,
-58,
-77,
86,
-25,
-110,
-13,
-53,
-51,
-71,
76,
-12,
-43,
8,
4,
-54,
125,
-58,
-112,
-55,
-100,
-50,
1,
-87,
104,
-41,
96,
56,
123,
112,
111,
17,
47,
-13,
46,
113,
-61,
65,
47,
-21,
47,
-47,
121,
-77,
-60,
-100,
22,
-79,
-26,
-102,
-127,
72,
122,
-112,
53,
6,
104,
115,
-92,
-42,
124,
22,
-119,
8,
38,
98,
41,
-11,
-49,
112,
0,
47,
-70,
-103,
-90,
-64,
64,
115,
0,
-66,
-103,
-12,
20,
-89,
104,
-26,
13,
29,
104,
-123,
-53,
-108,
-77,
15,
104,
-118,
3,
-61,
-113,
53,
49,
-53,
42,
78,
69,
114,
-103,
-113,
-55
] |
Eakin, J.
The bill in this case was dismissed after a •demurrer had been sustained and the complainant had rested.
It shows that about the year 1852 James Walker died intestate, leaving a large amount of real estate in several .parcels, consisting of plantation lands and town lots. About 'the year 1858 his descendants had all died, except a granddaughter, Emily Sophrouia Quarles, in whom all his real • estate had vested, subject to a right by curtesy to one-half .in Thomas Watkins, who had married one of Walker’s three ■ children, after a brother had died childless.
Watkins, however, was claiming a larger estate as de 'rived through deceased children, by his deceased wife, and liad much of the property; in his possession, and a suit to recover it by Quarles (and wife was then pending. The parties litigant, “desiring,” as the bill alleges, “to convert the ■same into money, and divide the said money between them,” on the tweuty-ninth of December, 1858, conveyed each, their several interests to a trustee, William G-. Turner, to be •sold by him, (excepting specified portions) in order that the proceeds might be equally divided between said Watkins and Emily, after deducting a reasonable commission to be •allowed the trustee.
The deed itself, which is exhibited and prayed to be taken as part of the complaint, sustains the allegations, and further explains them. The exceptions from the general power of sale consist: First, of a tract of land on Little Eed river, on which Watkins resided, and which the trustee was directed to convey to him on his paying one-half the value to Quarles and wife, the time and mode of payment being prescribed ; and second, of a certain tract which Mrs. Watkins in her lifetime had agreed to sell to Joshua W. Stamps, and for which she had received a portion of the purchase money. Upon payment of the remainder the 'trustee was directed to convey to Stamps, and divide the proceeds equally between the parties, deducting from the share of Watkins the payments made to his wife, so that ■Quarles and wife should have a full half of the whole proceeds. For the rest it was provided that the trustee should convey the whole or any part of it to whomsoever the grant■ors might request, in writing, “provided, however,the price shall be fixed by the parties of the first part, and the same ;shall be fully paid or secured” — the proceeds to be paid ■equally to Watkins and to said Emily as her separate property . The trustee joined in the deed, accepting the trust ■and covenanting with the grantors well and truly to execute its provisions.
On the twenty-third day of February, 1872, the firm of' Davis & Bro. recovered a judgment for near $1300 against Watkins, and had the execution levied on the half interest of Watkins in certain lots and blocks in the town of Searcy, a part of the estate left by James Walker. They are described as block No. 2 ; lots numbered from 3 to 10, inclusive in block No. 11; lots numbered from 1 to 10 in block No. 13; lots numbered from 6 to 10 south of Spring Square, and blocks numbered 15 and 21 in Watkins’ and. Quarles’ addition. At the sale under this levy defendant,. Marcellus Davis, became the purchaser of all the property for $1175, and afterwards on the twenty-second day of March, 1876, conveyed it to James W. Brooks, who after-wards on the seventeenth day of July, 1876, conveyed it to defendant, E. Scottie Davis, wife of said defendant, Marcellus.
Meanwhile the complainant Turner, had himself become' a large judgment creditor of Watkins, by virtue of several judgments, either recovered by himself or obtained by assignment. One for $800 dollars on the twenty-ninth of September, 1873 ; one for $235 on the thirteenth of August,. 1875, and one for a small balance on the fifth of February, 1875. Upon the first two, executions had been issued and returned unsatisfied, and the first had been revived byscire facias on the thirtieth of July, 1877.
With regard to two of the blocks levied upon, to-wit: Numbers 15 and 21 in Watkins’ and Quarles’ addition, it is shown that at the time of the levy, Watkins had the whole interest, and not the undivided half alone, in them,, or their proceeds when sold, arising thus: In 1859, Quarles and wife conveyed to complainant all their interest in the N. W. ¿ of Sec. 11, T. 7, N. of R. 7 W., a part of the Walker lands adjoining the town of Searcy, which the trustee, with the assent of Quarles and Watkins, had laid oft in town lots. Afterwards, complainant and Watkins, to^ sever their interests, made partition by interchange of deeds, whereby the whole interests in those two blocks became vested in Watkins. As to the other lots and blocks, there has been no division of the interests of Watkins and Mrs. Quarles, nor does the bill disclose anything to indicate a reconversion.
The complaint further states that Walker owned an undivided half of what is called Spring Square, in said town, of which, when sold, Watkins is entitled to a half of the proceeds, or a fourth interest in the whole square.
Neither Watkins nor his wife has, at any time, been in the actual possession of any of the lots mentioned in the complaint. They remain vacant a'nd unoccupied.
Prayer that the deed .under the execution sale be annulled ; that a commissioner be appointed to sell the undivided half of said lots and blocks, and apply the proceeds to the satisfaction of complainant’s judgments with costs and for general relief. The bill was tiled on the seventh of December, 1878, against Davis and wife, Watkins and the trustee. Complainant appeals from the judgment of the court sustaining a demurrer to his bill,
OPINION.
There were five grounds of demurrer. The first three were all to the effect that no equities were shown. The fourth was, that the complainant failed to show an offer to redeem; and the fifth was the want of proper parties fendant. The demurrer was sustained upon all the It was certainly well sustained as to the last. If the principles upon which the complainant rests his right can be sustained, and are applicable to the facts, it will follow that Quarles and wife are necessary parties.' They are interested in the sales, through which, only, a court of chancery could afford remedial justice. The land, under the agreement, could not be sold by moieties.
But, if the chancellor erred in sustaining the demurrer as to the grounds which question the intrinsic equities of the complaint, no offer on complainant’s part to amend by bringing in other parties could have been of any avail to cure that error. He was not required to do a vain thing, and to dismiss his bill because he did not do so, would be but a continuation and consummation of the error in sustaining the demurrer for want of equity. If want of sufficient parties had been the only and specific ground upon which the demurrer was sustained, then, if the complainant had refused to bring in the necessary parties on being thus advised, the bill should have been dismissed. But, in this case, his declining to amend, as to parties, was no waiver of the errors, if any, in sustaining the demurrer on other points.
It was just as clearly error to sustain the demurrer on the fourth grounds: that complainant did not offer .nor attempt to redeem. If. Mrs. Davis took anything through the execution and sale, she has the right to hold it. If it vested nothing in her, there was nothing to redeem. This brings us to consider whether there was any intrinsic equity in the bill; and that depends upon whether Watkins, when the execution of Davis was levied, had any interest in the land itself subject to the execution at law; and, if so, what.
We cannot go behind the agreement to ascertain the interest of Watkins. It is a matter of no consequence whether he had curtesy or had nothing. It was a family contest concerning lands descended, between parties claiming antagonistic interests. The agreement stands on the ground of family settlements, which are as much encouraged and favored in equity, as purchases and sales of common inheritance amongst the co-heritors are suspected and guarded. In the latter, there is every temptation to undue advantage, and uberrima fieles is exacted, The former are for peace and harmony amongst relations. They are supposed to be the result of mutual good will, and imply a disposition to concession for the purpose, regardless of strict legal rights ; always excepting cases of fraud, of which nothing, in this case, appears.
It does not appear that the agreement interfered with any liens ; and the rights of both Watkins and Quarles’ wife must be determined by it, as well as those of all the world claiming under or through them. The very kernel of this controversy then, is, did Watkins have an interest which an execution would take ?
The compromise was not for a division of the real estate, as such, with a view of holding it as tenants in common. This is apparent on its face and from the nature of the provisions. Eor such a purpose no trustee was necessary; nor was it at all important that they should, for purposes of divisions of interests in the land, and of conceding equality in its ownership, have resorted to the device of raising equitable estates instead of such legal ones in the moieties, as they might have made by indentures. There was no indication that either party was 'willing to concede to the other, the enjoyment of the property itself — that is, the corpus of it, by possession, or pernancy of rents and profits; but rather that both parties desired the sale aud conversion of the property into money. This could not be effected well without a sale of the whole, as half interests are not so-marketable. If a legal or equitable estate to a moiety had been created, the manifest object of the compromise would have been defeated, because, in such case, neither could have had a sale of the whole, in invitum as to the other, without the inconvenience and expense of a bill of partition and a further disadvantage of a forced sale at auction, on fixed terms, instead of the more advantageous sales which might be effected privately upon more flexible terms, and by taking advantage of the state of the land market. Evi dently, the effect of the agreement and its manifest intent was to secure to each the right to have reasonable sales made, that the property might be converted into money. Leading Cases in Equity, 4 Am. Ed., Vol. 1; part 11, p. 1153.
It does not conflict with this that the trustee was to make conveyances at the request of the parties. This was to secure the performance of his duty. It is an ordinary clause in imperative trusts to be executed for the benefit of other’s, and does not necessarily make a condition precedent. This is well reasoned and settled by Sir William Grant, M. R., in Thornton v. Healey, 10 Vesey, Jr., 129, which is a much stronger case than this. It was a case where bank annuities were conveyed to a trustee for making a jointure and provision for children ; and it was provided that the trustee, upon the request of husband and wife, should sell the annuities for such reasonable price as could be got: and “with the consent and approbation” of said husband and wife, should invest in real estate, to be settled upon certain limitations.' It was held that the money was converted into laud by the mere force of the deed itself, in whatever shape it might afterwards be found, or in whosesoever hands ; and that with regard to its devolution and the rights of parties to enjoy it, it was to be treated as land. The master of the rolls said : ■“ There is no weight in the circumstance that the property is found in the shape of money or land, for the character is to be found in the deed.” With regard to the request, he says : “Nothing is more common than to direct money to be laid out upon request. The object of that is only to insure that the act shall be done when the request is made, not to prevent it until request.” The request was held not to be a condition precedent. It is to be remarked in that case, also, that the clause providing for the consent and approbation of the husband and wife to the particular investment in land did not prevent the application of the doctrine ■of conversion. The main object of the settlement seems to have been regarded as controlling; that is, that the sale should be made and realty purchased. This made the conversion. The matters of request and consent were regarded as incidents, or steps, for a fair accomplishment of the ■end in view. To the same effect is Lechmere v. Earl of Carlyle, 3 P. Wms., 218.
Of course, each instrument in any case must be construed ■upon its own face ; and there may be, and have been, cases in which requests and couseuts have been held conditions precedent to conversion. But there are cases where it clearly appears, by negative words, such as “not without,” ■and from the nature of the other provisions that it was not the intention of the parties that the conversion should be made without the condition ; that is, where it appears that the parties contemplate the alternative of no conversion. Such were the cases of Davies v. Goodnew, 6 Sim., 585, and the Matter of Taylor’s Settlement, 9 Hare, 596. In the former case, Vice Chancellor Shadwell said that “in every case in which the question has been whether the property, which was the subject of the suit, ought to be considered as real or personal estate, the court has ascertained the intention of the parties on that point, and has decided accordingly, ’ ’ I think there can be no doubt in this case, from the terms of the instrument, that both parties, desiring to convert the land into money, and to close litigation, contemplated a sale and division of money as to all the estate of Walker, save the excepted portions, as a thing to be accomplished to effectuate the end, and that each party looked to the fund as the result and outcome of the arrangement without desiring or expecting to enjoy the land as such. ’There were special provisions made for such lands as Wat,kins desired to keep, and nothing to indicate that either party expected to use any other of the lands in kind.
Some slight doubt, but only slight, as to whether or not the agreement amounted to a conversion, may arise from, the provision that the parties interested should agree upon the price. A little reflection makes it clear that this was intended rather as a guide to the trustee than as a condition, precedent. It would have converted the compromise into a hollow mockery to have made a sale absolutely dependent upon the concurrence of both parties in the price. For what, then, could either take, if the other should become perverse and refuse to assent to any price ? They would not become tenants in common equally, for neither conve}^ anything to the other, or to the trustee to hold for the use of the other. The conveyance is merely to sell, and if either may unreasonably defeat the sale, the rights of both, are left worse confounded than before. Courts of equity lean strongly to the support of family compromises, not to defeat them. In the case of Lechmere vs. The Earl of Carlisle (supra), speaking of a case where a purchase of land was to be made with the consent of husband and wife, Sir J. Jekyle, M. E., said, with regard to conversion,, that “such a clause made no difference, for, upon a convenient purchase being’ proposed, the court would have taken on themselves to judge thereof, and, without some-reasonable objection, would have ordered the monejr to be-laid out in it.” The same remedy might be applied to an unreasonable refusal to agree upon a price.
If there was no conversion by the compromise and deed, then, by law, there would be a resultant trust, and each would hold his old interest, with all its uncertainty, until a sale by consent of both; and if that consent could, not be coerced, if unreasonably withheld, the uncertainty would continue indefinitely. For, by the terms of the deed, their estates in the lands are not changed as regards each other. Nothing at all is conveyed from one to the other, but everything each has in the subject matter is conveyed to a third party in trust, not to allow the cestuis to take the- rents and profits, and hold the lands equally, as tenants in common, but for the special purpose of selling for division,, and dividing the money. It would have been but an empty form to have executed the deed with such views. It would have sufficed for Quarles and wife to have conveyed to Watkins all their interest in the Red River place, reserving a lien for half value; to have joined in confirming Stamps’ title, and there to have let the matter rest, with the intention of amicably joining in a conveyance upon any future sale of any part for division. Where was the use, in this view of the case, of the machinery of a trust, or any compromise at all. If the sales are to be always by mutual consent, and each may prevent it arbitrarily, what does the compromise effect?
We have seen that the question of conversion depends upon the deed, whether actually carried into effect or not. Delays do not of themselves work re-conversion, so as to restore the natural character of the property, unless there be some act of the parties entitled, to show an intention to take’ as land or money — to take it in its original and not its changed chai'acter. Whether or not there had been any enjoyment of the lands by the parties, as tenants in common, sufficient to manifest an intention to re-convert the laud into its original character, is not shown by the bill. With regard to the lots in question, it is said they are vacant and unoccupied, which would explain any mere delay without any presumption of re-conversion.
A person entitled to the proceeds of lands directed to be sold has no estate in the land, whatever ; only an equity to ')e euf°rced against the trustee, or other person wrongfully detaining his share of the proceeds. The interest is so entirely in the nature of personal estate, that where aliens are incompetent to hold realty they may take it. There is left no such interest in the land itself as can be bound by a judgment lien’or touched by an execution. See, upon all these points, the authoi'ities collected in the American notes to Fletcher v. Ashburner, in White, and Tudor’s Leading Cases, vol. 1, part 11.
We are thus irresistably led to the conclusion that the lands had in equity been converted into money, and that when the execution of Davis & Bros, was levied there was-no estate in the land, legal or equitable, belonging to Watkins, except the two blocks in Watkins’ and Quarles’ addition, as to which the bill itself shows that there had been a reconversion by consent and joint action. Referring again to-the case of Lechmere v. Earl of Carlisle, (supra), we find the master of the rolls saying: “The forbearance of the trustees in not doing what it was their office to have done, shall in no sort prejudice cestuis que trust; since, at that rate it would be in the power of trustees, either by doing or delaying to do their duty, to affect the right of another person, which can never be maintained.” The maxim that equity will consider that as done, which ought to have been done is of very general application. It is plain enough that equity will apply the rules governing real or personal property to a particular piece or fund in accordance with what its value should be, rather than with its nature as found,
The equitable doctrine of conversion has been fully adopted in many of the American states, and expressly repudiated in none. Arkansas is amongst those in which it can no longer be questioned. In Loftis v. Glass, Ex’r, 15 Ark. 680, where lands had been ,directed by will to be sold and the proceeds divided amongst heirs, at a future day, this court held that “even before the sale was made, the lands would have been regarded in equity as the personal •estate of the devisee or legatee, upon the established principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as the species of property into which they are to be converted,” In that ease it was held, that land, directed to be sold, had so acquired the character of personalty, that there was no such interest left in the persons entitled to the proceeds as would descend to heirs— their only right being to the proceeds, as personalty.
There being no interest in the laud, considered as land¿ logically follows, that a creditor of one entitled to the proceeds, mistakes his remedy by levying upon the land itself. Everything substantive eludes 1ns grasp. His proper course is to pursue the pi’oceeds, and to take steps to have them realized ; which is within the power of a court of equity. Otherwise, he would have it in his power to compel his ■debtor to elect to take the land in its natural character against his own wishes, and against the will of his beneficiaries, who are entitled to have the whole interest in the land sold at once, at the best rates, for division of proceeds ; in other words, to compel the •debtor to do what he has no right to do.
I do not conceive that our statute regarding property ■subject to execution touches the question. It provides that ■“all real estate, whether patented or not, whereof the defendant, or any person for his use, was seized in law or ■equity on the day of rendition of the judgment, order or decree whereon execution issued, or at any time thereafter.” What this may really mean has not been clearly defined by .any decision of this court. The clouds have been cleared from some prominent peaks, but much intervening lands-scape lies in obscurity. This is well illustrated by the opinion of the court, delivered by Justice Walker, in Turner v. Watkins, et als., compared with the dissenting opinion of Chief Justice English — the former holding that the interest of one who had made a deed of trust with power of redemption, was liable to execution, although not so, if the power of sale given were absolute and irrevocable, even if the grantor might be entitled to the surplus. Beyond this the court expressly declined any attempt to draw the
distinction (and doubts if it can be clearly done) between-such equitable estates as may or may not be taken in execution. The chief justice, arguing very forcibly from former decisions, contended that although there might be a right of redemption, this contingent right was not the subject of execution ; adopting the reasoning in Petit v. Johnson that the-sale of an interest in every respect so uncertain, would inmost cases be injurious to the debtor, and but little advantageous to the creditor. It is pretty clear that upon the decisions, the chief justice was right. The opinion of the court so far recognized the former authority of Petit v» Johnson as to hold arguendo, that a provision for a return of surplus proceeds of the sale to the grantor in the deed of trust would not leave any interest in the laud itself which could be reached by execution. It is difficult to see how such a concession can stop short of this case, where a sale-was contemplated without power of redemption, and each party was entitled to a share of the resultant proceeds. Under the statute it has always been held that there may be some equitable interests springing from land, which are not liable to execution, although they have never yet been classified. A right to a portion of the proceeds is one of thorn.
I think, however, the statute has no application ; for a conveyance wholly for sale, without defeasance, does not make the trustee seized of the land in any sense, in law or in equity, for'the use of the persons entitled to the process. He holds the proceeds for their use as money and has the land for the purpose of executing the trust. j
We think, upon the facts in the bill, it appears that the-execution sale under which Mrs. Davis holds, carried nothing but the two blocks in the addition ; that the trust remains unexecuted, and that the right of Watkins to the-proceeds of the sales when made can be reached through a court of equity which may devise a proper scheme for the execution of the trust, so as to carry out the intention of “the parties to the compromise; compelling such assent as ■ought in fairness and reason to be given, or upon its being withheld, acting with regard to the property and its disposition, as a sense of justice and right may dictate. What the true equities may be shown in the end to be, upon answer and proof, we cannot anticipate, but the complainant ■should have an opportunity of sustaining his bill. Although there were not proper parties defendant, and the court did not err in sustaining the demurfer on that ground, yet it did err in sustaining it upon the ground of the want of equity. As that could not be cured below by amendment as to parties, it would have been nugatory to make them, and the court erred in dismissing the bill. The complainant ■could proceed no further without allowing his bill to be dismissed and appealing.
Reverse the decree, and the order sustaining the demurrer upon all the grounds, and remand the cause with directions to sustain the demurrer upon the ground of want of parties alone, and to overrule it upon the ground of want of equity shown, and for such other proceedings as may be consistent with this opinion and with the principles and practice in equity, with leave to amend as to parties.
Smith, Justice, clubitanie. | [
-16,
110,
-40,
28,
58,
112,
32,
-78,
-38,
35,
-91,
83,
107,
70,
89,
97,
-29,
105,
-47,
43,
-26,
-93,
27,
33,
-14,
-109,
-55,
95,
53,
-52,
-28,
-41,
76,
48,
-56,
-107,
71,
-62,
-51,
80,
-114,
9,
-118,
69,
-103,
-24,
52,
-17,
80,
79,
81,
-114,
-13,
42,
29,
-61,
104,
46,
107,
-71,
-40,
-88,
-97,
29,
-101,
23,
16,
103,
-104,
-125,
-22,
40,
-112,
53,
0,
-24,
115,
-76,
22,
84,
-113,
-103,
9,
102,
98,
34,
101,
-19,
-48,
-104,
46,
94,
-115,
-122,
-46,
88,
67,
72,
-67,
-43,
124,
0,
39,
116,
-90,
-35,
88,
44,
41,
-113,
-106,
-109,
45,
56,
-108,
23,
-58,
27,
48,
113,
-49,
-94,
92,
71,
49,
-101,
-113,
-6
] |
Johnson, C. J.
This is a companion case to Nobles v. State, ante p. 472, decided on this date. The indictment is identical to that in the Nobles case; therefore need not be here set out. Upon trial to a jury, appellant was convicted as charged in the indictment, and was sentenced to three years in the State penitentiary, and this appeal is prosecuted to reverse this judgment'of conviction.
Appellant’s first contention that the indictment is not sufficient in law has been decided against his contention in the case of Nobles v. State, decided on this date, and need not be further considered.
The contention that there was a variance between the indictment and the proof in reference to the stolen money being coinage of the United States is without merit. Criglow v. State, 183 Ark 407, 36 S. W. (2d) 400.
Next it is urged that the proof did not show that the offense was committed within the bar of the three-year statute of limitations. Albert Bich, the aggrieved party, testified, in effect, that he was robbed about the 14th of January, this year, meaning, of course, 1934. This was amply sufficient to establish the time when the offense was committed. Nobles v. State, supra.
Neither is reversible error made to appear because of the examination of Pete Fain by the prosecuting attorney in reference to a statement theretofore made by the witness. The record does not disclose that the trial court acted upon the contention here presented, therefore we are not allowed to determine this question.
We have carefully considered appellant’s objections in reference to the instructions requested, given and refused by the trial court, but do not find reversible error therein.
Appellant’s last contention is that the court permitted one of the jurors to separate from the other members of the panel, and, while so separated, make a statement as to the mental status of the other members of the jury panel. Just how appellant’s rights were prejudiced by the actions of this juror is not pointed out. This does not reflect prejudicial error. Bieard v. State, ante p. 217; Fuller v. State, 171 Ark. 730, 286 S. W. 809.
No reversible error appearing, the judgment is affirmed. | [
-80,
-6,
-55,
62,
42,
96,
42,
62,
64,
-95,
-90,
51,
105,
-42,
0,
123,
-31,
43,
92,
104,
-50,
-77,
55,
-29,
-78,
-77,
-52,
-43,
-73,
79,
-26,
-44,
9,
48,
-54,
85,
102,
66,
65,
20,
-118,
-124,
40,
64,
115,
96,
52,
103,
84,
11,
-15,
-114,
-29,
58,
18,
-61,
105,
40,
75,
47,
64,
-15,
-122,
13,
-21,
20,
-79,
39,
-98,
5,
-40,
44,
-100,
49,
1,
-8,
115,
-122,
6,
-44,
111,
25,
12,
98,
34,
17,
21,
74,
52,
-119,
54,
-10,
-113,
-89,
-108,
64,
75,
37,
-74,
-97,
118,
20,
39,
124,
-27,
77,
61,
124,
1,
-33,
-14,
-110,
-81,
124,
-114,
-61,
-61,
-91,
20,
97,
-50,
-30,
93,
23,
49,
-101,
-122,
-56
] |
Johnson, C. J.
The grand jury of Hot Spring County, Arkansas, returned the following indictment against appellant at the regular January, 1934, term thereof:
“The grand jury of Hot Spring County, in the name and by the authority of the State of Arkansas, accuses Dewey Francis of the crime of assault with intent to kill, committed as follows, to-wit: The said Dewey Francis in the county and State aforesaid, on the 7th day of August, 1933, in and upon one J. R. Sirratt, then and there being, with a dangerous weapon, to-wit: a knife, with which the said Dewey Francis was then and there armed and which was then and there had and held in the hands of him, the said Dewey Francis, unlawfully, wilfully and of his malice aforethought, did make an assault with intent to kill the said J. R. Sirratt, then and there with the knife aforesaid, feloniously, wilfully and of his malice aforethought to kill and murder the said J. R. Sirratt by cutting and stabbing him with said knife aforesaid, against the peace and dignity of the State of Arkansas. ’ ’
Upon trial, appellant was convicted of assault to kill as charged in said indictment and his punishment fixed at five years in the State penitentiary.
Because of the views hereinafter expressed, it will be unnecessary to review the evidence in detail; it suffices to say that the evidence produced in behalf of the State was amply sufficient to sustain the charge of assault to kill.
Among other instructions given on behalf of the State, over appellant’s objections, the trial court gave to the jury instruction number 5 as follows: “You are further instructed that, if you believe from the evidence in this case beyond a reasonable doubt that the defendant cut J. R Sirratt with a knife, that the burden of proving circumstances of mitigation that justify or excuse the cutting is placed on the defendant.”
Appellant contends that the giving- of this instruction No. 5 was reversible error, and we agree with this contention. Section 2335, Crawford & Moses’ Digest, provides: “Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer or attempt to give any poison or potion with intent to kill or murder, and their counsellors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one nor more than twenty-one years.”
Since the pronouncement in Lacefield v. State, 34 Ark. 275, we have consistently held, to sustain an indictment for assault with intent to kill, the evidence must' be such as will warrant a conviction for murder if death had resulted from the assault. Allen v. State, 117 Ark. 432, 174 S. W. 1179; Deshazo v. State, 120 Ark. 494, 179 S. W. 1012; Davis v. State, 115 Ark. 566, 173 S. W. 829; Alford v. State, 110 Ark. 300, 161 S. W. 497; Jones v. State, 100 Ark. 195, 139 S. W. 1126.
Moreover, we have many times held that the evidence to warrant a conviction for assault with intent to kill must not only be such as to warrant a conviction for murder if death had resulted from the assault, but must further show a specific intent to take the life of the person assaulted. Chrisman v. State, 54 Ark. 283, 15 S. W. 889; Chowning v. State, 91 Ark. 503, 121 S. W. 735; Allen v. State, supra.
We have always held that the burden of proof was upon the State to establish the guilt of the accused as charged in the indictment beyond a reasonable doubt. 5 C. J., § 302, p. 778. The instruction heretofore quoted ignores this well-planted rule of law. It tells the jury, in effect, that, if appellant cut the prosecuting witness with a knife, the burden of showing mitigating circumstances devolves upon the accused.
Neither can the above instruction be justified under § 2342, Crawford & Moses’ Digest, which provides: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’
By the plain language of this section of the digest, it is only applicable in homicide cases. From a casual reading of the statute, just quoted, it definitely appears that this statute cannot be invoked in assault cases. The language, ‘ ‘ The killing being proved, ’ ’ is amply sufficient to sustain this position.
Moreover, we expressly determined in Parsley v. State, 148 Ark. 518, 230 S. W. 587, that it was reversible error for the trial court to invoke this statute in assault eases.
Other errors are pressed upon us for reversal, but we deem them not of sufficient importance to here discuss. It is entirely possible that these alleged errors will not recur upon another trial.
For the error indicated, the judgment of conviction is reversed, and the cause is remanded for a new trial. | [
113,
-18,
-15,
62,
10,
96,
58,
56,
-46,
-85,
-28,
-77,
-81,
-51,
72,
41,
105,
-19,
117,
121,
-124,
-77,
55,
77,
-78,
-13,
113,
-43,
50,
-51,
-10,
-36,
24,
112,
-54,
-39,
-26,
106,
-27,
-34,
-122,
32,
-103,
96,
83,
82,
48,
63,
85,
7,
97,
62,
-21,
42,
23,
-117,
45,
44,
-21,
-81,
112,
121,
-128,
-107,
-87,
22,
-77,
-90,
-97,
3,
80,
44,
-39,
49,
0,
-8,
115,
-74,
-62,
84,
77,
-120,
12,
98,
98,
14,
125,
-55,
-96,
-127,
-81,
-18,
-83,
-90,
24,
73,
65,
36,
-98,
-35,
126,
20,
14,
116,
-11,
-43,
17,
124,
5,
-49,
-108,
-77,
-49,
40,
30,
-30,
-5,
5,
48,
53,
-49,
-30,
85,
87,
50,
-101,
-121,
-47
] |
Mehaffy, J.
The appellant was the owner and in possession of lots 4, 5 and 6 in block 156 in the city of Hot Springs, Garland County, Arkansas. She failed to pay the taxes assessed against said property, which were due and payable in the. year 1930. Said property was sold for the taxes, penalty and cost to the State of Arkansas.
On August 16, 1933, the appellees, W. E. Lewis, Sr., and W. E. Lewis, Jr., purchased said property from the State of Arkansas, paying the Land Commissioner therefor the sum of $744.51, and received a deed from the State Land Commissioner.
Immediately after receiving the deed, appellees served notice on the appellant and also on the caretaker in possession of the property, notifying them to vacate said property immediately, stating that they had purchased said property and intended to enter upon immediate possession.
The appellant filed this suit in the Garland Chancery Court to cancel appellees’ deed as a cloud on her title. A demurrer was filed, alleging that the complaint did not state facts sufficient to constitute a cause, of action, and, second, that the complaint does not set forth specifically facts to show the invalidity of appellees’ deed, and third, that there is no strength of title shown in the appellant that would entitle her to relief.
The court heard argument on the demurrer, and made an order that the demurrer should be treated as a motion to make the complaint more definite and certain, and sustained it as such motion, and gave appellant 15 days in which to amend her complaint. This hearing and order were on August 25, 1933'. Thereafter the court entered another order striking out that part of the order of August 25th which treated the demurrer as a motion to make the complaint more definite and certain, and struck out that portion giving appellant 15 days in which to answer.
On October 10, 1933, the court made an order sustaining the demurrer and dismissing the complaint. The complaint seems to have been reinstated, and on December 15,1933, the appellees filed motion to dismiss for noncompliance with §§ 3708 and 3709 of Crawford & Moses’ Digest. This motion was by the court sustained, and the complaint was dismissed and appellant denied the right to amend.
There were several motions, and an injunction granted and receiver appointed, but it is not necessary to discuss them here. The court finally sustained the demurrer because appellant had not complied with § 3708 of Crawford & Moses’ Digest.
The. above section requires the affidavit of tender of taxes only when the suit is for the recovery of lands or for the possession thereof. This suit was not a suit for the recovery of lands, nor a suit for the possession of lands. The appellant was in possession, and the appellees had never acquired possession. If the purchaser of a tax title is in possession of lands, there would be some reason for tendering the taxes and filing the affidavit before any writ was issued. He should be given the opportunity to accept the taxes and deliver the possession. But where the original owner is in possession and the suit is merely to remove a cloud from his title, § 3708 has no application. Of course the original owner is required to tender and pay the taxes, but he is not required to file an affidavit of tender.
This court, in referring to the above section, said: ‘ ‘ The effect of that section is that, before any suit for the recovery of lands held by virtue of a purchase at tax sale, and in some other cases, the claimant shall file, in the office of the clerk of the proper court, an affidavit to the effect that he had tendered the full amount of all taxes and costs paid on account of said lands, with interest on the same at the rate of 100 per cent, upon the amount first paid for said lands, and 25 per cent, upon all taxes, and costs paid thereafter, etc. This is neither an action for the recovery nor possession of lands. The provisions of the law are severe, and will not be extended beyond the letter.” Hare v. Carnall, 39 Ark. 196.
“If such an objection could in suits of the nature of the present, the object of which is not the recovery of the land or the possession thereof, but simply to clear the title from doubt and clouds, in any manner avail, it certainly could not by demurrer, which will only lie for objections apparent upon the face of the complaint, either from the matter inserted or omitted therein, or from defects in the frame or form thereof. But it will plainly be seen, by a reference to the statute, that such an affidavit is required only in actions for the recovery of the land, or for the possession thereof.” Chaplin v. Holmes, 27 Ark. 414; Burgett v. McCray, 61 Ark. 456, 33 S. W. 639; Hodges v. Harkleroad 74 Ark. 343, 85 S. W. 779.
Since this is not a suit for the recovery of land nor for the possession thereof, the affidavit provided for in § 3708 was not required, and the court erred in sustaining the demurrer and dismissing the complaint.
The decree of the chancery court is reversed, and the cause remanded with directions to overrule the demurrer and proceed with the trial of the case. | [
-16,
-20,
-112,
76,
-22,
-64,
26,
-120,
83,
-125,
39,
91,
-23,
0,
28,
105,
-29,
41,
-15,
120,
-58,
-74,
71,
102,
-62,
-77,
-39,
93,
-75,
77,
-10,
-42,
76,
49,
-62,
21,
-60,
98,
-51,
-36,
78,
-125,
-117,
76,
-39,
-62,
52,
59,
2,
11,
97,
-81,
-14,
-84,
49,
75,
77,
44,
-23,
59,
72,
-22,
-101,
29,
-1,
6,
33,
100,
-104,
1,
-56,
-118,
-112,
49,
0,
-24,
115,
54,
-122,
116,
13,
-101,
8,
48,
102,
3,
45,
-25,
-72,
-120,
46,
-70,
-103,
-90,
-30,
88,
75,
73,
-66,
-107,
125,
-64,
71,
126,
110,
-115,
93,
108,
6,
-18,
-42,
-95,
5,
-72,
-104,
19,
-25,
47,
52,
80,
-49,
-30,
92,
71,
51,
27,
-114,
-13
] |
Mehaffy, J.
In the year 1917 there was organized in the city of Pocahontas, a city of the second class, an improvement district for the- purpose of installing a waterworks system. Benefit assessments against the real estate within the district were levied, bonds sold, and the waterworks installed. A sufficient amount of benefit assessments were, collected, to retire the bonds, and the last bond matured and was paid in 1927. Upon the completion of the waterworks 'system, it was taken over and managed by the city council of the city of Poca hontas. The users of water paid rentals, the same being paid into the treasury of the city of Pocahontas.
The State. Board of Health issued an order requiring the city to remove the intake pipe, through which the water was taken from Black River, to a point some distance upstream from where it was located. The order of the Board of Health was issued for the purpose of obtaining pure water, water that had not become polluted by waste matter reaching the river from the city.
It is claimed that the machinery used in the pumping-plant installed in 1917 is antiquated, worn, and needs replacement, and that when the intake pipe is moved upstream, it will be necessary to build a new pumping house and install new machinery therein; that these new constructions and changes will cost approximately $31,500.
The city of Pocahontas has arranged to issue bonds to be retired solely from the rentals collected from the waterworks plant. An ordinance, was passed pursuant to the provisions of act 131 of 1933. The ordinance provides that the value of the present system is $8,000, and the value of the new construction is $31,500, making a total value of $39,500. This ordinance binds the city to set aside, for use solely for the purpose of paying said bonds, 79.75 per cent, of the revenues derived from the waterworks system, it being estimated that this percentage is the proportion of value, that the improvements have to the value of the existing plant.
The city of Pocahontas is about to borrow money from the Federal Emergency Administration of Public Works of the United -States of America, and issue bonds, pledging the rentals to be received from the users of water, for the payment of said bonds.
Suit was brought in the Randolph Chancery Court praying that a permanent injunction be issued enjoining and restraining the appellees from proceeding under said ordinance, and from taking any further steps looking to the issuance of revenue bonds under act 131 of 1933.
The appellees filed a general demurrer which was sustained by the court, and the complaint dismissed, and the case is here on appeal.
As stated by the appellant, the question before the court is whether or not the city of Pocahontas has authority under act 131 of 1933, to construct the betterments and improvements contemplated by the city.
Section 1 of said act 131 provides: “That any city or incorporated town in the State of Arkansas may purchase or construct a waterworks system of construct betterments and improvements to its waterworks system as in this act provided. ’ ’ The said act then provides for the manner in which the city may purchase or construct the improvements.
It is contended by the appellant that the authority of the city of Pocahontas to purchase or construct the improvements does not exist, and several cases are cited and relied on. We do not discuss these cases for the reason that said act 131 expressly authorizes cities to construct waterworks systems and betterments and improvements, and prescribes the manner in which these things may be done, and this act was held constitutional, except as to the provision of the act exempting the bonds from taxation, and that provision was held void.
Attention was called to the provision in the statute making the provisions and sections of said act severable, and the court said, speaking- of acts 131 and 132 of 1933: “These acts are both complete and capable of -being executed in accordance with the legislative intent expressly declared in the section quoted, and the acts must therefore be upheld, notwithstanding this exemption and its consequent unconstitutionality as applied to persons or agencies whose property would otherwise be subject to taxation., Jernigan v. Harris, 187 Ark. 705, 62 S. W. (2d) 5.
It is next contended by the appellant that the city of Pocahontas has no authority because it does not own and operate the system. It is admitted that, if the city had acquired the waterworks system and had title thereto, and were operating the same, there could be no question of its authority to proceed to construct improvements and betterments. The waterworks system of Pocahontas was installed and operated by an improvement district in 1917. Bonds were issued and the prop erty assessed for the purpose of paying the bonds, and the bonds were all paid, the last one being paid in 1927. The city of Pocahontas in 1927 took over the waterworks system, and has operated it since that time, and the betterments and improvements, which are entirely new, are estimated to be 79.75 per cent of the value of the entire plant.
Among other things, act 131 provides: “Whereas, there are now in use works (owned by others than municipalities) of the character authorized by this act which require immediate repairs, improvements and/or extensions that can not be effected or accomplished because of the inability to finance same under existing laws, though the necessity for such repairs, improvements and extensions menaces the public health and safety; and this act provides a method whereby such works could be acquired by municipalities, and the necessary repairs, improvements and/or extensions promptly made.”
It has been held by this court that when improvements of this kind have been completed, they become subject to the control of the city, and that the board of commissioners thereafter have no authority to bind itself as a board. In other words, the improvement was controlled by the city, and it had a right to make improvements, betterments and additions, just as it had authority to construct a new plant.
In the case of Mississippi Valley Power Co. v. Board of Improvement Waterworks Dist. No. 1, 185 Ark. 76, 46 S. W. (2d) 32, the court held against the contention of the appellant here.
Besides, the debts of the improvement district all having been paid, and the system turned over to the city in 1927 and operated by the city since that time, the improvement district had no interest whatever in it. But, if it had an interest, the city was maintaining the plant as well as operating it, and the improvements and betterments involved here constitute a separate, distinct improvement, which the city had a right to make.
Section 10 of act 131, among other things provides for acquisition or construction of a waterworks system in a municipality which has not theretofore owned and operated a waterworks system, that in the ordinance declaring the intention to issue bonds, and providing details in connection therewith, the council shall provide, find and declare in addition to the other requirements set out in the statute, the value of the then existing system and the value of the property proposed to be constructed, and the revenues derived from the entire system when the contemplated betterments and improvements are completed shall be divided according to such values and so much of the revenue as is in proportion to the value of such betterments and improvements, as against the value of the previous existing plant as so determined, shall be set aside and used solely and only for the purpose Of paying the revenue bonds issued for such betterments, together with costs, etc.
The. council of Pocahontas made the estimate of the value of the properties, and the ordinance provides for setting aside and using solely for the payment of the new improvements, that per cent, of the revenue which the new construction bears to the whole property.
The ordinance provides for the! issuance of the proper revenue bonds or other evidence of indebtedness exclusively against the. plant and income therefrom, and further provides that it will set aside and use only and solely for the purpose of paying revenue bonds, 79.75 per cent, of the revenue derived from the waterworks system. In other words, they provide for issuing evidence of indebtedness to be paid solely from the. revenue of the new improvement. That is, they take that per cent, of the revenue which the value of the new improvement bears to the value of the whole plant, and pledge that to secure ths payment of the indebtedness.
Amendment No. 13 to the Constitution provides, among other things, that a city or town shall never issue any interest-bearing’ evidences of indebtedness except bonds to pay for indebtedness existing at the time of the adoption of the Constitution of 1874, but provides that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purpose approved by such majority at such election as follows. It then provides among other things, for purchasing, extending, improving, enlarging, building or construction of waterworks, etc.
But these bonds can be issued only by and with the consent of a majority of the qualified electors voting at the election.
Constitutional provisions should receive a reasonable. construction, the purpose being to ascertain the meaning of the framers of the provision of the Constitution, and the intention of the electors in adopting the provision. It was manifestly the intention of the framers of Amendment 13 to prohibit cities and towns from issuing interest-bearing evidence of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the-intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements- so made alone to the payment of the indebtedness.
“The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court therefore should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any sought to be prevented or remedied.” 12 C. J., 700.
The construction of a constitutional provision should be uniform, so that it will operate at all times alike and in the same, manner with reference to the same subjects. 12 C. J., 718.
Amendment No. 13 has heretofore been construed by this court, and it has been held that where the debt is to be paid out of the receipts derived from the operation of the system, and not out of funds belonging to the city, the indebtedness is valid and not prohibited by Amendment 13. McCutchen v. Siloam Springs, 185 Ark. 846, 49 S. W. (2d) 1037; Jernigan v. Harris, supra. Therefore the pledge by the city of Pocahontas of the revenue derived from the improvement to pay the price of the improvement is valid.
It appearing that the improvement is to be paid solely from revenue derived from the improvement, the ease must be affirmed. | [
-16,
85,
-108,
-51,
126,
-32,
8,
-104,
-45,
41,
-12,
87,
-1,
98,
16,
105,
-29,
125,
117,
17,
-26,
35,
19,
-62,
-110,
-45,
-1,
87,
-6,
76,
-12,
-57,
74,
0,
-61,
-99,
66,
34,
-11,
-36,
-58,
-123,
-101,
-31,
-43,
-61,
52,
111,
50,
-54,
53,
12,
-11,
45,
16,
-29,
36,
46,
-23,
-85,
64,
-6,
-96,
-108,
-17,
20,
0,
66,
-124,
-41,
-50,
-116,
-104,
53,
88,
-20,
123,
-90,
-122,
117,
-127,
-101,
12,
-32,
102,
3,
101,
-17,
-88,
-20,
6,
-34,
-115,
-91,
-77,
89,
42,
-127,
-70,
28,
122,
-36,
-123,
114,
-18,
-123,
95,
108,
-125,
-97,
-106,
-95,
13,
-84,
-116,
7,
-17,
67,
38,
116,
-51,
-94,
92,
109,
49,
91,
-121,
-69
] |
Kirby, J.
Appellant brought this suit to foreclose two mortgages given him by appellee. One mortgage secured a note dated December 31, 1931, for $135 executed by appellee to appellant’s order. The other secured a note dated January 8, 1932, for $672.27, also executed by appellee to appellant’s order. An answer was filed which alleged that each note was usurious and void for that reason.
The court found there was no usury in the note first mentioned and decreed the foreclosure of the mortgage which secured it. It was found and decreed, however, that the second note was usurious and void for that reason, and this appeal has been prosecuted to reverse that decree. No appeal was prosecuted from the decree ordering the foreclosure of the mortgage securing the note first mentioned.
Appellee testified that he borrowed $607.97 from appellant, from which a recording fee of $4.50 was deducted, and that appellant charged him $64.33 for making- the loan, which was evidenced by the note for $672.27, and that this note bore interest at ten per cent, per annum from date until paid.
Appellee’s testimony makes a case of usury, but it is categorically denied b3r appellant. Appellee testified that he received only $607.97, from which the $4.50 recording fee was deducted. This fee of $4.50 cannot be considered in determining whether the loan was usurious, for, although it was not paid to the borrower, it was paid out for his benefit. This was a charge which appellee agreed to pay and must be regarded as a part of the money which he received.
The purpose of the loan here- under review was to pay and satisfy a judgment which had been recovered against appellee, and to redeem his land from sales for taxes. Appellee itemized the payments which appellant made for his account. These, including an abstract of the title, which cost $26, totaled only $607.97, and appellee denied that any other sum had been paid out for his account or benefit.
Appellant testified that he was not in the loan business, and had never taken bur three mortgages in his life. That appellee applied to him to make the loan, and urged that it be made to save his farm. He was offered a bonus to make the loan, but declined to accept it and took a note only for the actual amount that he had paid out at appellee’s request and for his benefit. Appellant mentioned two items which appellee at first denied receiving. One of these was evidenced by a check to the county treasurer for $15.55, and another was a check to the sheriff for $8.52. Upon being- recalled, appellee admitted the correctness of these items, which reduced the bonus which lie claimed to have paid for the loan by the amount of the two items. The loan was, according to appellee, still usurious notwithstanding these deductions.
Appellant testified that, after he agreed to make the loan, he directed J. W. Martin to prepare the abstract, to ascertain the amount of money which appellee required, and to prepare the necessary papers, and that he paid the sum which Martin told him would be required, and that the note was taken for the aggregate payments which he made, and for nothing more.
Martin testified that appellant and appellee came to his home and told him that appellee had some land which was about to be sold under an execution, and that appellant was going to loan appellee “some money to clear up his indebtedness.” It was not then known what sum would be required, but Martin was directed to obtain this information and 'to prepare the papers. It was quite a job to do this and took Martin about two days to do so. Martin further testified: “We didn’t know how much it would take to take up this indebtedness. I prepared the abstract and looked up the judgment and got the taxes on other lands besides this land and got everything up, and we came to the courthouse and Mr. Brown issued his checks to cover these different items. I drew the mortgage and Mr. Brown paid for that. Q. These items had been arrived at by you and Mr. Fretz? A. Yes, sir, and the other officials around the courthouse.”
We conclude therefore that the transaction was not usurious, but, if so, there was no intention to charge usury. It was held in the case of Leonhard v. Flood, 68 Ark. 162, 56 S. W. 781, that usury will not be inferred where from the circumstances, the opposite conclusion can be fairly and reasonably reached, and we think the conclusion that appellant did not intend to charge usury may be fairly and reasonably reached.
It was also held in the case of Richardson v. Shattuck, 57 Ark. 347, 21 S. W. 478, to quote the headnote, that: “A loan bearing the highest legal rate of interest, secured by a mortgage of land, is not usurious because made upon condition that the borrower should, in addition, furnish an abstract of title of the land and a certificate that it is not incumbered, that he should have it inspected and valued by a competent person, and that he should pay the fee for having the mortgage recorded. ’ ’
The charge of such expenses as preparing the ab-tract and recording the mortgage cannot therefore be deducted in determining the actual amount of the loan. It follows, from what we have said, that the decree of the court below is erroneous, and it will be reversed, and the cause will be remanded with directions to enter a decree conforming to this opinion. It is so ordered. | [
-16,
120,
-48,
127,
74,
112,
42,
-102,
-40,
-96,
-74,
-45,
-5,
-61,
4,
45,
-12,
105,
113,
120,
-27,
-77,
46,
72,
-46,
-77,
-7,
85,
-75,
108,
-26,
-43,
12,
48,
-64,
21,
102,
-126,
-29,
84,
14,
5,
-67,
68,
-35,
66,
52,
127,
112,
77,
17,
-121,
-29,
46,
21,
74,
76,
46,
-23,
61,
-48,
-24,
-97,
13,
125,
71,
-80,
101,
-100,
65,
-54,
28,
-104,
53,
0,
-24,
50,
-90,
-122,
118,
70,
26,
8,
118,
102,
16,
101,
107,
-4,
-120,
39,
-10,
31,
-90,
-110,
88,
2,
33,
-66,
-99,
124,
65,
39,
-2,
-20,
-99,
29,
108,
19,
-118,
-106,
-109,
-83,
116,
-98,
-117,
-1,
-89,
48,
112,
-49,
-96,
92,
36,
58,
-101,
-114,
-103
] |
Humphreys, J.
This is an application to this court for a writ of prohibition to prevent the circuit court of Pope County, Arkansas, from proceeding with the trial of the case of S. M. Brisco v. the Federal Land Bank of St. Louis, a corporation, upon constructive service. Constructive service was obtained under the provisions of our statute (Crawford & Moses’ Digest, §§ 1159-1160) by suing out a general writ of attachment on the ground that the Federal Land Bank of St. Louis was a foreign corporation and by levying same upon land in Pope County belonging to said corporation and duly publishing a warning order notifying said corporation to appear in said court and defend the action.
The petitioner herein appeared in response to the warning order for the sole purpose of contesting the service and filed an unverified motion to quash the service on the grounds: first, that it was not a foreign corporation ; and, second, that its property in the State of Arkansas is not subject to attachment because said corporation is an instrumentality of the government of the United States.
The motion was overruled, and this application for a writ of prohibition followed.
The basis of this suit was a claim for a commission of $300 alleged to have been earned by a duly licensed real estate broker for the sale of a farm valued at $6,000, acquired by the Federal Land Bank of St. Louis, Missouri, through foreclosure proceedings to enforce the collection of money it had loaned.
Personal service could not be obtained because the Federal Land Bank of St. Louis, Missouri, had not, and was not required to maintain, a branch office in the State of Arkansas nor to designate an agent in the State of Arkansas upon whom service of summons may be had before it could do business in the State.
The banking corporation was organized under the provisions of an act of Congress of the United States, approved July 17,1916, for the purpose of lending money upon mortgage securities in the States of Missouri, Illinois and Arkansas, with its domicile or its principal place of business in the city of St. Louis, Missouri.
The act authorizing the creation or organization of the corporation provides, in paragraph 6 of § 4, that such banking corporations, when organized, may “sue or be sued, complain, interplead and defend in any court of law or equity as fully as natural persons.”
(1). The first contention of petitioners in support of their request for a writ of prohibition is that the Federal Land Bank of St. Louis cannot be sued anywhere except in a court of competent jurisdiction within the territorial limits of its domicile in St. Louis, Missouri. This contention is without merit, as the act of Congress authorizing the creation of said banking corporation provides in the plainest language that it may be sued in any court of law or equity as a natural person may be. This section can have no other meaning except that the corporation may be sued wherever service can be obtained upon it, actually or constructively. However, petitioner argues that the constructive service in the instant case was insufficient because the basis of the service rests upon the allegation that it is a foreign corporation; whereas it was not made a foreign corporation with respect to Arkansas by the act of Congress authorizing its creation. Authorities are cited by petitioner tending to support the theory that it is a domestic corporation of the United States and consequently a domestic corporation or resident of the State of Arkansas, as Arkansas is a part of the United States. These authorities are not in point because they do not take into consideration our statutes defining foreign corporations. Foreign corporations, in contemplation of law in this State, are defined by statutes in the following language:
A foreign corporation is one created by the laws of some other State or country. ’ ’ Section 9743 of Crawford & Moses’ Digest.
“The words ‘other country’ signify any part of the world out of this State.” Section 9744 of Crawford & Moses’ Digest.
In 14a C. J., 1214, ^ 2934, in discussing the subject of whether a Federal corporation is foreign to States, it is said: “Under statutes defining a foreign corporation as one created under the laws of any other State, government or country, a Federal corporation has been held to be a foreign corporation with respect to a State.”
We are of opinion that the Federal Land Bank of St. Louis, Missouri, is a foreign corporation, and that the constructive service was sufficient.
(2). The second contention of petitioner in support of its request for a writ of prohibition is that the Federal Land Bank of St. Louis, Missouri, is an instrumentality of the government of the United States, and that on that account its property is not subject to attachment. In the act authorizing the creation of said banking corporation, there is no limitation or restriction against reaching its property by attachment. We know of no law preventing levy by attachment against the property of corporations created by act of Congress except preventing attachment against the property of national banks before judgment is obtained against them. Van Reed v. People’s National Bank, 198 U. S. 554, 25 S. Ct. 775. If Congress had intended that the property of the Federal Land Banks should not be subject to attachment, it would have prohibited same in the act. We think the case of The State of Missouri ex rel. St. Louis, Brownsville & Mexico Ry. Co., v. Taylor, Judge of the Circuit Court of the City of St. Louis, 266 U. S. 200, 45 S. Ct. 47, announces principles applicable to the case in hand.
The writ is therefore denied.
McHaney and Butler, JJ., dissent.
Smith and Mehaeey, JJ., concur in the result. | [
-76,
-19,
-16,
-4,
10,
-32,
56,
-70,
90,
-96,
-91,
83,
-23,
-56,
85,
97,
-27,
-71,
117,
120,
-59,
-74,
87,
74,
82,
-109,
80,
-59,
-76,
95,
-26,
-107,
77,
56,
74,
-47,
-58,
-32,
-61,
28,
-18,
37,
25,
109,
81,
-39,
48,
-21,
82,
79,
1,
-115,
-29,
45,
31,
66,
41,
110,
-55,
45,
-8,
-80,
-102,
-43,
127,
23,
33,
69,
-104,
35,
-62,
30,
-120,
49,
17,
-7,
119,
-74,
-122,
52,
107,
89,
40,
46,
98,
11,
-75,
-49,
-116,
-120,
22,
-2,
31,
-122,
-112,
121,
3,
44,
-66,
-99,
92,
16,
-122,
-10,
-18,
69,
21,
108,
15,
-53,
-42,
-89,
-115,
-8,
-97,
3,
105,
-57,
48,
117,
-50,
98,
94,
-57,
58,
-101,
-114,
-39
] |
Kirby, J.,
(after stating the facts). It was not necessary that there should be a waiver by the landlord in writing of his lien for supplies furnished. Griggs v. Horton, 84 Ark. 623, 104 S. W. 930; 36 C. J., p. 521; Wilson v. Citizen’s Bank, 170 Ark. 1194, 282 S. W. 689.
B. J. Altheimer and others testified to the effect that Meyer, the agent of appellant, orally agreed with him that he would waive the landlord’s lien up to $2,000, if they would help his tenant to get merchandise and supplies for the purpose of making and gathering the crop. Altheimer also testified that he had to indorse the account with the Altheimer Agricultural Credit Corpora tion as they could not get the money without the indorsement, and that he furnished the remaining $3'50 himself.
It is true that Meyer, the agent of appellant who executed the lease, denied making the oral agreement for the waiver of the landlord’s lien, hut his testimony cannot be said to have been uncontradicted; and McKenzie corroborated the testimony of B. J. Altheimer.
There is no doubt about the supplies having been furnished in the amount as stated, nor that the credit corporation authorized the furnishing of the additional $350 by appellees.
On the whole case the testimony is sufficient to support the chancellor’s findings that there was an oral waiver of the landlord’s lien for said amount and that the credit company had the right to do the furnishing up to the amount specified in the lease, $2,000, and upon its consent, or rather arranging for the loan of the balance of the amount necessary for making the crop, it cannot be said that the amount of this account, $350, furnished by Altheimer, Bowen & Clary was furnished only upon an open guaranty.
A careful examination of the whole record does not disclose the chancellor’s findings contrary to the preponderance of the evidence, and the decree will not be disturbed here. Affirmed. | [
48,
107,
92,
-81,
74,
32,
42,
-70,
115,
-89,
39,
83,
-21,
-34,
20,
47,
-90,
125,
84,
104,
87,
-73,
38,
72,
-46,
-13,
-13,
-43,
-79,
110,
-44,
28,
76,
28,
-64,
-105,
-26,
-40,
-63,
92,
-114,
5,
-87,
65,
-4,
64,
52,
15,
112,
11,
33,
-124,
-29,
44,
25,
77,
43,
46,
77,
45,
-16,
-16,
30,
-116,
-1,
7,
51,
4,
-100,
37,
-40,
8,
-112,
57,
1,
-23,
121,
-92,
-110,
85,
79,
-117,
41,
102,
98,
34,
-87,
-23,
-36,
-100,
46,
-33,
-99,
-90,
-47,
88,
34,
40,
-66,
29,
112,
18,
54,
-12,
-18,
5,
95,
108,
27,
-113,
-44,
-77,
13,
116,
-102,
-125,
-17,
-121,
-91,
113,
-51,
-90,
92,
103,
115,
-101,
-122,
-23
] |
McHaney, J.
Appellant was convicted of the crime of robbery of a filling station in Little Rock on November 9,1933, and sentenced to five years in the penitentiary. The deputy prosecuting attorney, in his opening statement to the jury, said: <£I think the testimony will show that this was one of a series of robberies in which this boy was engaged.” An objection was made to this statement, which was overruled by the court. During the trial, L. R. Biggs, a witness for the State, and the operator of another filling station in Little Rock, was permitted to testify, over appellant’s objections, that appellant and two others attempted to rob him on November 10, 1933, the day following the date of the robbery for which he was on trial, and that appellant later admitted to him that he was one of the three boys that attempted to hold him np. In this connection, the court gave to the jury, over appellant’s objections and exceptions, instruction No. 5, which reads as follows: “The defendant is being tried alone for the crime of robbery. The State has attempted to show by testimony that this defendant engaged in an attempted crime of robbery on the night following the date of the crime for which he is now being tried is alleged to have been committed. If you should believe from the evidence that the defendant did attempt to commit robbery on the night following the alleged crime for which he is being tried, it might be considered by you as showing, if it does so show, a scheme and a design on the part of the defendant in the commission of crime, and for no other purpose; and, even though you should believe him guilty of attempted robbery committed on the day following the day of the robbery for which he is now being tried, yet that would not be sufficient to warrant his conviction on the charge for which he is now being tried unless you believe he was guilty on this particular charge beyond every reasonable doubt.” These matters are urged here for a reversal of the judgment of conviction.
A number of decisions of this court are cited to the effect that evidence of other crimes is not admissible to prove guilt of the particular crime for which the accused is on trial, for the reason that the State cannot resort to proof of his bad character as a circumstance from which guilt may be inferred. On the other hand, we have many times held that evidence of similar crimes closely connected with the crime charged, is admissible, not only to show knowledge or intent, but to show a system, plan or scheme of conduct on the part of the accused. Many such cases might be cited. They are collected in Crawford’s Digest under Criminal Law, § 92. Two of the recent cases on the subject are Wilson v. State, 184 Ark. 119, 41 S. W. (2d) 764, and Sibeck v. State, 386 Ark. 194, 53 S. W. (2d) 5.
"We are therefore of the opinion that the testimony of the witness, Biggs, was properly admitted and properly limited in instruction No. 5, above set out. It follows that the judgment must be affirmed, as these are the only assignments of error relied upon. | [
112,
-24,
-19,
125,
10,
96,
40,
62,
67,
-93,
100,
-45,
-87,
-58,
4,
121,
-85,
123,
-44,
112,
-28,
-105,
7,
113,
-6,
-13,
121,
-43,
49,
77,
-18,
-12,
13,
112,
-54,
81,
-30,
74,
-25,
94,
-114,
-119,
-70,
-62,
88,
0,
34,
98,
116,
14,
97,
-98,
-61,
42,
18,
-50,
105,
44,
75,
63,
88,
49,
-108,
13,
45,
20,
-93,
2,
-101,
5,
-16,
62,
-36,
-15,
1,
-24,
115,
-122,
-126,
-28,
77,
-103,
-116,
98,
-30,
1,
21,
-21,
-96,
-127,
62,
63,
-107,
-90,
-40,
64,
65,
109,
-105,
-35,
59,
20,
14,
-6,
-3,
-108,
81,
108,
1,
-113,
-16,
-79,
-55,
52,
-106,
-71,
-53,
35,
50,
112,
-51,
-94,
92,
85,
122,
-97,
-122,
-43
] |
Johnson, C. J.
This replevin action was instituted by appellee, Virginia C. Clement, against Ed Williams, et al., trustees for Pleasant Grove Baptist Church, colored, in the municipal court of Pine Bluff seeking possession of a certain piano. Appellee was successful in the municipal court and appellants appealed to the circuit court of Jefferson County wherein results were obtained not dissimilar to those in the municipal court, and this appeal is likewise prosecuted, which must result as in the lower courts. The facts are not in material dispute and may be summarized as follows:
Prior to 1932 appellee owned the piano in controversy; in January, 1932, she delivered it to Kohn & Kohn Music Company of Pine Bluff for storage, the storage to be paid by use of the instrument for demonstration purposes. While, the piano was thus stored, appellants representing the negro Baptist Church purchased same from Kohn & Kohn Music Company paying full value therefor in cash, without notice of appellee’s ownership or circumstances indicating her interest.
This ease is ruled by Forest v. Benson, 150 Ark. 89, 233 S. W. 916, and cases therein cited. Since the rendition of the opinion of this court in McIntosh v. Hill, 47 Ark. 363, 1 S. W. 680, we have consistently held that possession of personal property is only prima facie evidence of title, and that the doctrine of caveat emptor prevails notwithstanding the possession; also that the prima facie title must yield to the actual title when asserted unless the actual owner has done some affirmative act, or has neglected to speak when called upon to do so, which estops the actual owner in his present assertions. The trial court found, as a fact, that appellee was not estopped in asserting her actual title to the piano in controversy, and this finding is not without substantial evidence to support it. The doctrine here announced or restated is not in conflict with Georgia Casualty Company v. Board of Directors, 188 Ark. 1122, 70 S. W. (2d) 33, or any other opinion of this court on the subject here under consideration.
No error appearing, the judgment is affirmed. | [
-76,
-18,
-36,
94,
74,
96,
40,
-86,
98,
-93,
39,
-45,
-23,
66,
28,
45,
-13,
125,
113,
121,
-58,
-77,
6,
-110,
-112,
-69,
123,
-43,
-67,
-53,
-28,
-42,
76,
32,
-22,
-43,
66,
-64,
-59,
28,
-114,
9,
59,
68,
-7,
-23,
52,
41,
20,
79,
-43,
87,
-95,
44,
25,
67,
105,
46,
111,
57,
-48,
-8,
-102,
5,
111,
23,
49,
36,
-104,
-93,
-56,
104,
-112,
49,
16,
-8,
115,
-90,
6,
84,
79,
-119,
8,
98,
98,
2,
-11,
-25,
-112,
-120,
46,
34,
-97,
-90,
80,
88,
74,
107,
-74,
-99,
117,
0,
4,
-2,
-3,
-99,
31,
108,
13,
-49,
-108,
-79,
37,
40,
-110,
3,
-17,
-109,
48,
80,
-49,
114,
93,
19,
55,
-101,
-114,
-75
] |
McHaney, J.
The subject-matter of this litigation has heretofore been considered by this court in three separate cases. The first was Mason v. Graves, 265 S. W. 667, not officially reported, 167 Ark. 678, 265 S. W. 667; the second was Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524; and the third was Murphy v. Graves, 170 Ark. 180, 279 S. W. 359.
Appellant was formerly Mary Murphy, the widow of Larkin Murphy who died intestate in the year 1878, the owner of 160 acres of land in Ouachita County, and leaving surviving him appellant and two children, Joe and Drucilla. This land constituted the. homestead of Larkin Murphy, and Mary, his widow, continued to occupy it as a homestead after his death. She thereafter married Graves, and three children, Luther, Mary and Martha, were born of this union. In 1884, on the application of Mary Murphy Graves, widow of Larkin Murphy, the probate court entered an order vesting the title to said land in Mary Murphy Graves on the ground that the value of the whole estate of Larkin Murphy was less than $300. In the case of Hildebrand v. Graves, supra, it was held that this order was void because the land constituted the. homestead of Larkin Murphy, who left minor children.
In 1897 appellant conveyed the middle one-third of said tract, fifty-three and one-third acres, to Will Newton, who had married Drucilla Murphy, by deed purporting to convey the fee simple title. By deeds of 1905 and 1911 purporting to convey a like title, she conveyed the west one-third of said tract to Luther Graves, a son by her second husband. She occupied the house on the east end of the tract, called the home tract. In 1913 she made a gift to her daughters, Mary and Martha of the east one-third of said tract, to Mary the west half of the east fifty-three and one-third acres, and to Martha the east half thereof. Mary had intermarried with Henry Murphy at that time. These daughters made improvements on the tracts given them by their mother, entered into possession thereof, and have lived thereon since that time; their mother, appellant, living with them. On May 22, 1922, appellant executed deeds to Mary and Martha to the respective, parts she had theretofore given them, which deeds were shortly thereafter placed of record, — that to Mary being recorded May 30, and that to Martha June 3, 1922. On June 12, 1922, one P. T. Hildebrand secured a deed from Drucilla Newton, the sole heir at law of Larkin Murphy, then living, to the whole 160-acre tract, and on June 17, 1922, he secured a deed from appellant’s daughters, said Mary and Martha, to the same tract. On June 20, 1922, Hildebrand executed an oil and gas lease to George B>. Gordon, and through mesne conveyances and assignments, title to the lease vested in appellee on July 29, 1922. Hildebrand reconveyed the land their mother had deeded them to Mary and Martha, excepting the mineral rights. On June 22, he executed to Mary and Martha mineral deeds, subject to said lease, covering an undivided half interest in two 20-acre tracts. Thereafter, oil was discovered in large quantities on said land, that is, the east one-third of said tract, by appellee, which gave rise to this and the former litigation heretofore mentioned.
This action was brought by appellant in September, 1933, in which she asserted a claim of dower. She alleged that the oral gifts to her daughters, Mary and Martha, were, upon condition that they were to take effect only upon her death, and that she retained and reserved to herself during her life all her rights, interests and property in said tracts so given, and all the rents and profits therefrom, with the right of occupancy and possession, and all taxes to be paid in her name, with all rights of homestead, dower, etc., and that she executed and delivered 'the deeds of conveyance to Mary and Martha upon like, conditions. She sought a recovery of and from appellee of the value of the oil which it is alleged it had wrongfully taken from the east one-third of said original tract. Appellee answered admitting some of the allegations of the. complaint and denying others. It set out its title as above mentioned, for which it paid a valuable consideration and pleaded that it was an innocent purchaser. It also pleaded estoppel on a number of grounds, including the former litigation herein men tioned, and other litigation, as also the statute of limitation, adverse possession and laches.
Trial to a jury resulted in a verdict and judgment for appellee.
There, is some contention made on this appeal that there was no delivery of the deeds executed by appellant on May 22, 1922, to her daughters Mary and Martha, and for this reason no title passed to them. While the complaint alleged the execution and delivery' of said deeds, appellant testified that she took the deeds, after their execution, home and put them in a trunk. Her testimony as to the nondelivery thereof to the grantees is very vague and uncertain. Appellant is quite old, lacking in memory and deaf, and testified through an interpreter. She was supported somewhat by her daughters. But the fact remains, however, that she had in 1913 made a parol gift of the same land conveyed by said deeds to her said daughters, put them in possession and permitted the making of improvements thereupon, which had the effect of giving them the fee title. We so held in Murphy v. Graves, 170 Ark. 180, 379 S. W. 359. In that case Bennie Murphy, son of Joe Murphy and grandson of Larkin, sought to recover his deceased father’s interest in all the land, and it was held that he was barred by the statute. It was there held that appellant had abandoned her homestead rig’ht by her attempted conveyances of 1905 and 1911 as to the portions of the land described in said deeds, and the court continued: ‘ ‘ The question presents itself whether or not the oral gift of the remainder of the land to the two daughters of Mary Graves (Mary and Martha) constituted an abandonment. We are of the opinion that it did. An oral gift of land is not enforceable unless there is actual possession delivered followed by the making of valuable improvements by the donee. Young v. Crawford, 82 Ark. 33, 100 S. W. 87; Brown v. Norvell, 96 Ark. 609, 132 S. W. 922; Williams v. Neighbors, 107 Ark. 473, 155 S. W. 917; Causey v. Wolfe, 135 Ark. 9, 204 S. W. 977. The executed oral gifts of land were as effectual to divest title as a written conveyance.” It was then said that Bennie Murphy’s right of entry, “was complete upon the abandonment of the homestead right by the widow, and the statute of limitations began to run against him at that time. The widow (Mary Graves) also had an unassigned dower right, but this did not bar the right of entry of the heirs so as to prevent the statute of limitations from running. Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Fletcher v. Josephs, 105 Ark. 646, 152 S. W. 293.”
Therefore,-appellant’s daughters, Mary and Martha had acquired the legal title to their respective tracts of the east one-third of the 160 acres prior to the execution by appellant of the deeds to them in 1922. We think it must be held that these, deeds conveyed her unassigned dower right in said tracts. If so, then these conveyances were not to strangers to the title, but to the owners of the legal title, and, both the legal and the equitable title being in them, the unassigned dower right was extinguished, and their deeds to Hildebrand conveyed the whole title, both legal and equitable.
For this reason alone, the court should have directed a verdict for appellee as requested by it. It becomes unnecessaiy to discuss the other interesting points so ably argued by counsel on both sides.
Let the judgment be affirmed. | [
-44,
108,
-67,
93,
-86,
112,
72,
-88,
114,
-127,
100,
83,
105,
-38,
1,
121,
98,
123,
65,
104,
-12,
-74,
63,
-128,
-46,
-5,
-87,
-60,
-69,
77,
36,
-10,
76,
44,
74,
93,
-62,
-94,
-49,
82,
14,
-60,
-85,
77,
73,
98,
60,
111,
80,
15,
101,
-113,
-77,
45,
53,
-53,
12,
46,
-53,
41,
65,
-88,
-68,
7,
-1,
23,
17,
100,
-112,
-127,
-56,
8,
-112,
49,
32,
-24,
115,
38,
-106,
116,
27,
-103,
9,
102,
102,
17,
-84,
-17,
-96,
24,
47,
62,
-123,
-90,
-104,
73,
67,
72,
-65,
-107,
124,
64,
-58,
-14,
-26,
12,
92,
104,
-123,
-113,
-42,
-91,
7,
56,
-104,
3,
-5,
7,
96,
81,
-55,
34,
69,
-61,
49,
-101,
-121,
-7
] |
Humphreys, J.
This suit was commenced by appellees in the chancery court of Sebastian County, Fort Smith District, to recover $1,000 from the makers of a note executed on the first day of May, 1929, by John Mayne Bailey and Della Mae Bailey to the City National Bank of Fort Smith as agent; and to foreclose a mortgage on certain real estate therein described to secure same. It was alleged that said note of $1,000 was one of a series of six separate notes evidencing an indebted ness of $6,000 for borrowed money, secured by said mortgage, and the appellees purchased the $1,000 note in question from said bank for $1,000 in cash, and that the-interest on said note was payable at said-bank, and that at maturity the principal was also payable at said bank. It was also alleged that, the day after the note matured, the appellees left the note at said bank for collection and took a receipt therefor reciting that it was left with said bank for that purpose, and that they notified the bank that they wanted the money on the note and not to renew or extend it. It was also alleged that, in violation of their instructions, said bank took renewal notes for $6,000' and a new mortgage to secure it and canceled and surrendered the old notes and mortgage, including the $1,000 note belonging to appellees. The prayer of the complaint was for a judgment against the Baileys, the bank, and I. H. Nakdimen, president of same.
A demurrer was filed on the grounds that the complaint failed to state a cause of action; that the action of foreclosure was prematurely brought; and that there was a defect of parties for failure to make the holders of the other notes parties defendant.
The demurrer was sustained, and appellees filed an amended complaint incorporating all of the allegations of the original complaint and, in addition, alleged that said bank and its president were acting as the agent of the Baileys and themselves in renewing the loan and not as appellees’ agent; and also more specifically alleged the conversion of appellees’ $1,000 note by the cancellation and surrender thereof to the Baileys and their acceptance and retention thereof without paying same. Appellees renewed the prayer of their original complaint.
■ Appellants thereupon filed a motion to transfer the cause to the circuit court on the ground that, if any cause of action were stated in the amended complaint, it was an action at law and not in equity.
The chancery court sustained the motion, and, after the cause was lodged in the circuit court, appellees made a motion to remand same to the chancery court, which was overruled.
Thereafter, appellants filed a demurrer to the complaint upon the same grounds set forth in the demurrer in the chancery court, which demurrer was never ruled upon by the circuit court, no request being made by appellants that it do so.
Appellants then filed an answer denying the material allegations of the complaint, reserving the right to question the sufficiency thereof. Further answering, appellants stated that the original $1,000 note was left with said bank for renewal; that, after the new notes and mortgage were executed in exchange and satisfaction of the original notes and mortgage, two interest payments were made by the. Baileys to the bank and by it paid to appellees with full knowledge of appellees of the exchange and cancellation of the old notes for the new, thereby ratifying the extension of the loan. The prayer was for a dismissal of the complaint.
The cause was submitted to the jury upon an instruction to the effect that they should return a verdict in favor of appellees for the face of the old note as damages against the Baileys and said bank, if they should find from a preponderance of the evidence that appellees left their note for $1,000' with said bank for collection, with specific instructions not to renew same, and that the makers and said bank renewed same without their knowledge and consent and pursuant thereto new notes and a mortgage to secure them were executed to said bank as agent without the knowledge of appellees, and that the bank tendered appellees one of the new $1,000 notes in lieu of their old note, which they refused, unless the appellees subsequently ratified the renewal thereof.
Under this instruction and others requested by appellants and appellees relative to whether the renewal was ratified, the jury returned a verdict against appellants in the amount prayed for, upon which judgment was rendered, from which is this appeal.
Appellants first contend for a reversal of the judgment because no cause of action was alleged in the complaint.
It is unnecessary to determine whether a cause of action in equity was stated in the complaint because that question was determined in favor of appellants on demurrer, and the motion to transfer the cause to the circuit court, and no appeal has been taken from that decree.
The amended complaint sufficiently alleges a conversion of the old note of $1,000’ belonging to appellees jointly by said bank and the makers thereof, and the attempted substitution of the new note therefor, which appellees refused to accept, all without the knowledge and consent of appellees. Arkansas Fertilizer Co. v. City National Bank, (Tex. Civ. App.), 137 S. W. 117.
Appellants also contend for a reversal of the judgment because the evidence is insufficient to support same. The uncontradicted evidence shows that, when the old note for $1,000 matured, it being payable at said bank and executed to said bank as agent, the note was presented to said bank for collection and was received and receipted for that purpose alone with specific instructions by appellees not to renew or extend same. The uncontradicted evidence also shows that said bank violated the instruction and renewed the note by agreement with the Baileys, the. makers thereof, to take new notes and a new mortgage to secure same without the knowledge or consent of appellees. At this juncture, a sharp dispute or conflict arises in the testimony.
The testimony on the part of appellants reflects that, after being informed of the transaction, appellees accepted the new note in lieu of the old, but, becoming dissatisfied, returned the new note, with full knowledge of all that had been done and thereafter received two interest payments on the new note knowing they were .interest payments on same.
The testimony on the part of appellees reflects that, when they were informed of the transaction and the new note was tendered to them in lieu of the old note, they declined to accept same and demanded a return of their old note or money in payment thereof, and that the two payments of interest thereafter received by them were payments of interest on the old note.
This issue of fact was clearly one for the jury and not the court, and their finding is binding on appellants, as • the instructions of the court upon the question of ratification were correct.
The court gave instruction No. 3 requested by appellees on the issue of ratification, which is as follows:
“Even though you may find from the evidence in this case that the plaintiffs, J. A. Biggs and P. L. Biggs, received the interest on the $1,000 after the date-that the $6,000 loan was renewed by the bank and Mr. Bailey, this alone would not constitute a ratification of the renewal, or prevent the plaintiffs from recovering in this action.
“Before the plaintiffs can be held to have ratified the renewal by accepting the interest on the $1,000, they must have accepted it with full knowledge that it was being paid on the new note.”
The court also gave instruction No. 3 requested by appellants on the same issue, which is as follows:
“If the plaintiffs left the old note at the City National Bank for collection, and if the said note of John Mayne Bailey and his wife were renewed, and if the plaintiffs received said renewed note and returned the same to the bank with a statement that they did not wish to purchase the note or to renew the old note, and if plaintiffs thereafter received interest on the new note, they cannot recover.”
Both are correct, and there is no conflict between them.
Instruction No. 2, given at the request of appellees, fully covered the main issue in the case, and it was unnecessary to give instructions requested by appellant upon the same issue, as those requested were a repetition of the one given.
No error appearing, the judgment is affirmed. | [
-108,
100,
-96,
110,
10,
-32,
40,
-102,
-37,
-127,
52,
83,
-23,
69,
69,
77,
-28,
41,
117,
104,
-57,
-77,
47,
74,
-46,
-77,
-7,
-43,
-80,
79,
-92,
-41,
8,
56,
106,
25,
66,
-30,
-89,
-44,
14,
-127,
9,
100,
-39,
10,
48,
-17,
80,
7,
53,
-89,
-10,
41,
52,
75,
73,
47,
-17,
41,
-48,
-8,
-118,
5,
93,
5,
17,
119,
-102,
69,
74,
-120,
-112,
49,
1,
-72,
114,
38,
-126,
116,
111,
27,
12,
102,
98,
50,
-27,
-21,
-116,
-116,
39,
-66,
29,
-122,
-78,
104,
75,
41,
-66,
-99,
124,
81,
7,
-42,
110,
5,
25,
104,
7,
-22,
-106,
-127,
29,
56,
-98,
27,
-1,
-109,
32,
113,
-51,
-94,
92,
71,
56,
-101,
-114,
-71
] |
Butler, J.
Appellee recovered a verdict in the sum of $10,000 for injuries suffered while employed by the appellants, a partnership, as a common laborer in the construction of a concrete tank at the State Hospital near Benton. Appellee is a married man, ivas a manual laborer, strong and in good health and had been employed on this job since it was started two months before his injury, at which time he was twenty-one years old. Before that he had farmed and worked for a while on State highway construction.
The appeal in this case involves only the question of the employers’ negligence. It is appellants’ contention that there is no legal evidence sufficient to support the verdict. No evidence was offered by the appellants. Th©> case was submitted on the testimony adduced by the appellee in which there is no conflict. The difference of opinion arises as to what are the just inferences reasonably deducible from the evidence.
The tank on which appellee was working when he sustained his injury is a rectangular pit. It was excavated with a steam shovel to the depth of twelve feet. On the bottom and sides wooden forms were installed into which concrete was poured thus making the walls around the pit and a partition wall. The wooden forms had been removed, leaving the walls, which were sixteen inches wide. On the outside of the walls the dirt had been excavated for the purpose of installing drains. At intervals along the walls and near the middle were holes four inches square. The top of the walls had not been smoothed or plastered over, leaving the surface more or less uneven. On the date of the injury to appellee, August 25, 1933, the partition was being used for the storing of lumber and the laborers were engaged in the afternoon of that day in rolling loads of cement and sand in wheelbarrows along and on top of the walls surrounding the pit, under the supervision of their boss or foreman. For just what purpose this material was in tended to be used is not disclosed, nor is that fact important. During the afternoon and .just before appellee sustained his injury, he had rolled along the wall a couple of loads of sacks of cement in a wheelbarrow. He had also rolled along- the wall two wheelbarrow loads of sand. Herman Lott, a fellow workman, had rolled a load of sand up in another wheelbarrow. Appellee’s superior directed him to leave the wheelbarrow in which he had brought up the sacks of cement with the last load remaining in it and directed him to take the wheelbarrow Lott had been using and ■ get another load of sand. That wheelbarrow still had some sand in it which appellee unloaded and immediately went to the sand pile, reloaded it, and began pushing this wheelbarrow so loaded along the top of the wall as he had been directed to do. In pushing the wheelbarrow he held the handles which extended on either side of him with his hands. That was the first day he had rolled a wheelbarrow on top of the wall. The holes were am-covered, and it was necessaiy to guide the wheelbarrow so as to miss them. It was while making this trip that he lost his balance and fell into the hole resulting in serious injury to himself.
In describing the manner in which he pushed the wheelbarrow and how he happened to fall, appellee stated that he had no knowledge of the condition of the wheelbarrow and had had no opportunity to ascertain it. He took the one he had been instructed to take and never got far enough with the load on it to be able to discover its condition. He was uncertain what caused him to fall — he was trying to avoid the holes as he propelled the wheelbarrow, which, as he stated, “just rolled some way on the rocks or hole and got me overbalanced and kicked me in. I can’t tell just exactly — I was trying to keep the wheelbarrow under control to keep from falling. I can’t say exactly what the wheelbarrow hit.’’
Appellee was required to repeat several times, both on direct and cross-examination, the manner in which he rolled the wheelbarrow and how his fall was occasioned, but the above quotation contains essentially all that he stated in regard to the incident and his knowl edge of its cause. No other person observed appellee as he fell or just before his fall. Three of his fellow employees testified. All that two of them knew was that they heard the fall of the wheelbarrow and the outcry of the appellee and saw his condition when they reached him in the pit into which he had fallen. The third employee did not see the accident but went also at once to his injured fellow and noticed the wheehbarrow and described its condition at that time. His testimony is to the effect that he examined the wheelbarrow a little— but not much; that he looked at it as it was being taken out of the pit sufficiently to observe its condition, which he described as “pretty shackly.” In the frame part there were bolts missing and wire had been inserted where they should have been to hold the frame together.
At the conclusion of the testimony the appellants moved for a peremptory instruction which the court refused, and this action on the part of the court is the principal ground of error assigned. The contentions are (1) that there is no evidence to sustain the claim that the accident resulted from youth, inexperience, of failure to warn; (2) that there is no legally sufficient evidence to show _ that the wheelbarrow was defective before the accident, or that any defect in the wheelbarrow caused the accident; (3) that the risks were obvious and assumed. In disposing of the first contention it is sufficient to say that the allegations of the youth and inexperience of the appellee and failure to warn were abandoned and were not issues in the case. Contentions numbered two and three will be discussed in the order above stated, which is the reverse from the order of discussion in appellant’s brief.
It is contended that there is no competent and legal evidence tending to show the condition of the wheelbarrow before the accident. We agree with the appellants that evidence is incompetent where the defects discovered are such that they may reasonably be supposed to have been the result of the accident itself when there are no circumstances in proof from which there may arise a reasonable inference that the defective condition of the instrumentality existed prior to the accident. In this case, however, it appears that a jnst inference may be drawn from the evidence relating to the condi.tion of the wheelbarrow that such condition had existed for a considerable time. Its ramshackle condition might reasonably be deemed to have been occasioned by the loss of the bolts from the frame of the barrow and the substitution of wire in their stead. Learned counsel contend that the manner of construction of wheelbarrows is one of common knowledge. We agree that this is true, but differ with counsel in their conclusion that wheelbarrows are not rigidly built; as to the frame or “body” of a wheelbarrow, the reverse is. true. It is likewise the case that while wire is often substituted for a lost bolt, it cannot, and does not draw the parts together as firmly.as a bolt well tightened. The fact that immediately after the accident the barrow was found to be held together with wire, justified the jury in concluding that this condition had existed for a considerable time and was the cause of the frame of the barrow being “shaky.” Common experience in the ordinary affairs of life and the fact that wheelbarrows are ancient vehicles in common use would also jiustify the jury in the assumption that a wheelbarrow with a loose frame would be easily overturned when loaded, because it would be liable to move from side to side as it is being rolled along, and that the condition of the wheelbarrow in question was the proximate cause of its being overturned while being rolled along the wall which caused the appellee to lose his balance and to fall within the pit.
The next question is, was the danger attendant on the movement of the barrow along the wall so great and so readily discoverable as to constitute a lack of ordinary care under the circumstances on the part of the appellee and create an assumption on his part of the risks involved. It is the general rule that a servant assumes the risks ordinarily attendant upon his work and also those risks created by the negligence of the master which create a situation of danger open and obvious and readily appreciable by a person of ordinary intelligence who continues to work in such situation. There are exceptions, however, to this rule. One of these is that where the work is being done under the direct command and supervision of the master, the risk will not be assumed by the servant unless it is so grave and apparent that no person of ordinary intelligence, regardful of his own safety, would engage in the work despite the command.
In the recent case of National Refining Co. v. Wreyford, ante p. 598, the cases bearing on this question were collected and the general rule drawn from them was thus stated: “In cases of this sort” [where the employee is working under the direct supervision of the master and obeying his commands] “the employee is not required to weigh the degree of danger and decide whether it is safe for him to act, and, in a measure, he is relieved of the usual obligation to exercise ordinary caution in the performance of his work. In ordinary cases he may assume that the employer has superior knowledge and may rely thereon. * * * This rule is founded on the psychological truth that habits of obedience are formed by employees to a degree which often overrules independent thought and action and thus deprives them of the exercise of intelligent foresight and prudence, which would otherwise protect them. The rule, however, has application (as will be discovered by a review of the cases cited) where the superior who gives the command is present in person actually directing the performance of the work, or where the command is given with a degree of knowledge equal to that of the employee as to the situation and circumstances surrounding the performance of the act commanded. The question of assumption of risk of the danger arising from an act commanded by a superior, under the rule stated, is always under circumstances from which the .jury might find that the command was negligence in that it directed the performance of an act which, from its very nature, or from the attendant situation and circumstances, might be reasonably apprehended as \ dangerous to the employee. ”
In the instant ease the work was being done under the direct supervision and direction of appellee’s superior, the representative of the master, who commanded him to use a particular wheelbarrow, load it with sand, and to roll it along the top of the wall. Was the risk attendant upon this work so manifestly great and so appreciated by appellee as to justify him in refusing to obey the command and to create on his part by obedience to it an assumption of the dangers involved? We think the evidence was sufficient to submit that question to the jury. It is true that the appellee, as a reasonable man, would know that his movement along the wall would be attended by some danger, but which he had the right to believe could be overcome by the exercise of due care on his part. He knew the condition of the wall and the existence of the pit, but did he know the condition of the wheelbarrow, and had he had a reasonable opportunity of appreciating the danger to be expected from such condition within the time he had taken charge of the barrow under the command of the master until the accident occurred? And was the knowledge of the entire situation and appreciation of the danger sufficient to cast upon him the assumption of the risks involved? These were questions for the jury, which have been resolved in favor of the appellee upon substantial evidence.
We have already discussed the proposition that the jury might have justly concluded that the defective condition of the wheelbarrow was the proximate cause of appellee’s fall and his injuries. The next question is, what was the duty of the master with respect to affording’ the appellee safe tools with which to work and the effect of his command to use the particular tool? Counsel argue that a wheelbarrow is a simple tool, and that there was no duty resting upon the master to inspect the same for defects. While a wheelbarrow is a common tool, it cannot be said to be a simple tool — like a chisel, a woodman’s axe, or tools of such nature which are commonly used. The simplicity of the tool, however, is not always the criterion by which the duty of the master with regard to it is to be established, but rather the use to which the tool is to be put, the locality where the work is to be performed, and the attendant circumstances. It must be conceded that where a servant is employed in pushing a wheelbarrow loaded with material like loose sand along level ground where there is no danger to be reasonably anticipated from a false movement of the barrow, or its being overturned, no duty would rest upon the master to inspect its condition before command tó a servant to use it. A different situation, however, presents itself in the case at bar. The master knew the ordinary danger to be expected from any movement along the wall with tools in good condition, and therefore, before directing the servant to use an instrument with which he was not acquainted, it was the duty of the master to acquaint himself with it sufficiently to discover whether or not it was reasonably safe and in condition for the purpose intended. Therefore, it must be assumed that the master knew the condition of the barrow. If, then, the command to use it directed the performance of an act which from its very nature or from the attendant situation and circumstances, might reasonably be apprehended as dangerous to the servant, the jury would be warranted in finding that the master was negligent in giving such command. National Refining Co. v. Wreyford, supra.
Appellants complain of instruction No. 2, given at the request of the appellee, because it submitted to the jury the question of the negligence of the appellant as alleged in the complaint. The contention is that there were several grounds of negligence alleged in the complaint which were not supported by any evidence, and that the instruction given was therefore erroneous. The jury could not have been misled or the appellant prejudiced on account of the quoted language contained in the instruction. All of these allegations had been abandoned except the one relating to the defective condition of the wheelbarrow and the negligence of the master in that regard, the case being submitted to the jury on that sole issue. This appears to have been the thought of counsel for the appellants at the time the objection was interposed to the instruction during the course of the trial, because, in the specific objection made, there was no complaint about any particular word or phrase in this instruction. The specific objection made was, “because there is no testimony to show any negligence oil the part of the employer.” This had the effect of waiving other specific objections to the instruction. Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803.
Instructions Nos. 3 and 4 submitted the question of the right of the servant to rely upon the command of the master and whether or not, under the circumstances, the servant should be held to have assumed the risks. These instructions, which we deem it unnecessary to set out in full, correctly state the law of the case, which is in effect that as approved in the cases heretofore referred to.
The appellant requested instruction No. 6 which would have told the jury that the master was under no duty to furnish the servant with a safe place to work where the servant is engaged in work of such nature that it changes his place of work from time to time and the situation where the work is performed, and that any hazards arising under those conditions are assumed by the servant. There are several reasons why this instruction should not have been given. In the first place, the appellee was not engaged in work which was constantly-changing in character. The pit had already been constructed and the walls were undergoing no change at the time of the accident. The servant was working under the direct supervision of the master and obeying his command, and the duty of making his working place and appliances safe had not been delegated to him.
Instruction No. 7, requested by the appellants, would have told the jury that there could be no recovery for any defective condition of the wheelbarrow. Instruction No. 8, requested by appellants, would have directed no recovery because of post holes in the wall. Instruction No. 10, requested -by appellants, was to the effect that it was not the duty of appellants to put railing around the wall or flooring upon its top. Instruction No. 7 was properly refused, and what has previously been said, with no further discussion, is sufficient to dispose of that instruction. Instructions Nos. 8 and 10 were properly refused because the questions presented by these instructions were not issues. For the same reason, instruction No. 13, requested by appellant, was properly refused. This instruction dealt with the duty of the master with relation to young and inexperienced servants.
Instruction No. 9, requested by appellants and refused by the court, would have told the jury that no-recovery could be had if appellee accidentally lost his balance and fell or if he accidentally stepped from the wall. Instruction No. 14, requested by the appellants and refused by the court, related to the assumption of obvious risks by the servant. These instructions were fully covered by instructions previously given, and it ivas not required of the court to restate propositions of law already given. What we have said of instructions Nos. 10 and 14 disposes of the question of the court’s refusal to give instruction No. 11, requested by appellant. This related to an employee knowingly working under an unsafe condition or who should have known of the same, and that a continuing of the work with knowledge of these risks, or those which became known to him during the progress of the work, would create the assumption of such risks by him under such circumstances.
The sufficiency of the evidence to support the amount of the verdict is not questioned. Therefore, since there appears to be substantial evidence fixing liability on the appellant and since the court committed no prejudicial error in its charge to the jury, the verdict is upheld, and ihe judgment of the court affirmed. | [
-16,
104,
-4,
-115,
8,
64,
42,
26,
97,
-123,
101,
91,
-19,
-57,
73,
99,
-57,
61,
-43,
59,
-42,
-93,
83,
-21,
-110,
-73,
123,
-43,
-80,
106,
-28,
-43,
77,
48,
66,
-43,
-30,
2,
-51,
92,
-64,
-124,
-86,
-22,
121,
16,
60,
110,
-12,
79,
49,
-98,
107,
42,
24,
-57,
13,
46,
75,
45,
80,
-7,
-126,
5,
47,
16,
-96,
102,
-100,
71,
-40,
26,
-104,
49,
0,
-56,
112,
-74,
-63,
116,
99,
-71,
12,
98,
102,
35,
-99,
71,
40,
-8,
15,
-50,
-115,
-92,
-103,
57,
91,
-87,
-107,
-99,
112,
86,
20,
-6,
-11,
93,
95,
108,
-125,
-113,
-12,
-77,
15,
36,
-100,
-79,
-17,
-123,
54,
117,
-52,
-94,
93,
39,
114,
-97,
-126,
-6
] |
McHaney, J.
This appeal involves the construction of the will of Alexander Robertson, a resident and citizen of Little Rock prior to his death in 1921. The will created a testamentary trust for certain purposes hereinafter stated, and appointed the Union & Mercantile Trust Company of Little Rock as trustee. The latter was succeeded by the Union Trust Company, and it later was succeeded by appellant, Union National Bank, which, together with the other appellants, were, by chancery decree appointed co-trustees in succession. The only part of the will of said Alexander Robertson relating to said trust is section 4 of paragraph 2 thereof, which reads as follows:
“4. After the payment of the legacies and bequests set forth in sections two and three of this paragraph of my will, all of the rest and residue of the property in the hands of my said trustee, real, personal and mixed, shall be converted by it, as soon as practicable, into cash or other securities, and the. net income therefrom shall be applied, appropriated and expended by my said trustee in procuring scholarships for a business or commercial course in some college or school, to be selected by it for such women and girls of the city of Little Rock, Arkansas, as my said trustee shall select as worthy and deserving of procuring such business or commercial course, and who, in the absolute discretion of my said trustee, shall have insufficient funds of their own for procuring such business or commercial course, such scholarship to be known as the Abigail Robertson scholarship. My said trustee shall be the sole and absolute judge as to whether or not the applicants, applying to it for such scholarship are worthy of its aid and support, the said trustee being hereby specifically conferred with full power and authority to accept or reject any applicant for said scholarship.
“Where an award is made to an applicant, said trustee shall in its absolute discretion appropriate and apply such part of the net income from the property in its hands as it shall, in its absolute discretion, deem necessary to procure for said applicant such business or commercial course, including the appropriation and expenditure by it of such sums as it shall, in its absolute discretion, deem necessary for the support and maintenance of said applicant while attending such school or college under such scholarship.”
The widow, Abigail Robertson, subsequent to the probate of the will, elected to renounce same and took certain property as dower. Shortly thereafter, however, she changed her mind and deeded most of the property back to the trustee upon condition that after her death it should be held and administered as a part of the trust property and in accordance with the provisions of her late husband’s will.
Appellee applied to appellants as trustees to advance her $500 to assist her in pursuing her studies of voice in Chicago, and her application was denied on the ground that assistance for snch a course of study was not authorized or permitted under the terms of the will creating the trust. She brought this action, alleging* that she is a citizen and resident of Little Rock, that she had studied music in Chicago for four years under certain prominent teachers, who, on account of her unusual progress, have offered to continue her musical education without charge if she can maintain herself; that she is without funds - and unable to continue her studies unless aided by this fund; that she had made application to appellants for said sum and believes they favor advancing same to her, but are in doubt as to their authority under the will to do so; that it is her intention to devote her life to music and to support herself in that way; and that a musical education is for her a matter of business. She prayed the court to construe the will and advise the trustees whether they are so authorized by the terms of the will.
The answer set up the clause in the will above copied and the clause in the deed of Mrs. Robertson above referred to, and stated that the trustees were in doubt whether a musical course of study is within the purview of the will; that they do not feel authorized to grant a scholarship for such purpose without first being advised and instructed by the court that it is within their power; and that they have accordingly refrained from considering appellee’s application and her qualifications until they are so advised. The prayer joins in a request to the court to construe the will.
The evidence shows that up to the present time scholarships have been only granted out of such fund for business- and commercial courses in business and commercial schools and colleges of Little Rock; and that the trustees now have in business schools or colleges seventy-four young women. The chancery court entered a decree granting the prayer of appellee’s complaint, and holding that appellants have the power under the will, as trustees, to grant her application and furnish her a scholarship for the study of music.
In tliis we think the learned trial court was in error. Assuming that the court had jurisdiction to construe this will, a question not raised or decided, the general rule is that the paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public policy or of some rule of law, shall control; and such intention is to be ascertained from the language used as it appears from a consideration of the entire instrument. Words and sentences used are to be construed in their ordinary sense so as to arrive at the real intention of the testator. Witten v. Wegman, 182 Ark. 62, 30 S. W. (2d) 834; Union Trust Co. v. Madigan, 183 Ark. 158, 35 S. W. (2d) 349; First National Bank v. Marre, 183 Ark. 699, 38 S. W. (2d) 14; Lavenue v. Lewis, 185 Ark. 159, 46 S. W. (2d) 649.
Bearing these fundamental rules in mind, we think there can be no doubt-as to the nature of the beneficence the testator intended to bestow. The language of the will is that the net income of the trust fund shall be applied by the trustee in procuring “scholarships for a business or commercial course in some college or school” to be selected by the trustee for such women and girls of the city of Little Bock as the trustee shall select as worthy and deserving of “such business or commercial course” and who in the judgment of the trustee shall have insufficient funds for procuring such “business or commercial course. ” It is true1 that the word “business’’ in its broadest acceptation would include every trade or occupation. See definitions in all the dictionaries and in Words and Phrases.
But we are of the opinion that the testator did not use the word in that sense, but the words “business or commercial” were used in a synonymous sense. In other words, that the word “commercial” is explanatory of the word business. This is further evidenced by the fact that the two words are connected by the disjunctive word “or.” So the testator, by using the words “business or commercial course,” evidently meant to use them in the sense ordinarily conveyed by such use — such a course as it usually taught by business or commercial schools and colleges, and not to schools and colleges teaching the arts, sciences and professions. If the appellee is correct in her contentions, then the trustees would be authorized to send qualified persons to schools of law, medicine, dancing and what not, and would, in our opinion alter the purpose of the trust. This a court of equity has no power to do. As said by this court in Morris v. Boyd, 110 Ark. 468, 162 S. W. 69: “The jurisdiction of courts of equity to supervise the execution of charitable trusts does not include the power to alter the terms of the trust, nor to sanction a diversion of any portion of the trust estate. That would involve the making of a new will for the testator and a disposition of the property contrary to the intention of the donor.”
We are therefore of the opinion that the court erroneously construed the will. It necessarily follows that its judgment must be reversed, and the cause dismissed. | [
55,
108,
-40,
60,
-118,
112,
59,
-102,
81,
-63,
37,
83,
107,
-54,
21,
107,
-94,
127,
-32,
106,
-9,
-73,
7,
96,
83,
-13,
-15,
-57,
48,
125,
-28,
126,
77,
32,
-22,
-43,
-26,
-54,
-31,
-42,
14,
1,
10,
109,
-35,
65,
52,
-9,
18,
-117,
69,
-98,
-13,
41,
29,
70,
104,
110,
105,
-67,
88,
-112,
-117,
-123,
127,
21,
16,
39,
-104,
9,
66,
8,
-40,
53,
65,
-24,
112,
-74,
22,
-44,
91,
-103,
9,
118,
98,
-112,
37,
-17,
-112,
-120,
22,
110,
-115,
-124,
-102,
89,
10,
104,
-107,
-34,
91,
-112,
38,
-10,
-26,
-115,
30,
104,
0,
-113,
-42,
-95,
-87,
-8,
-104,
2,
-21,
99,
50,
117,
-56,
-62,
93,
66,
55,
-109,
-122,
-77
] |
McHaney, J.
Certain parties known in this record as the Cates heirs, in October, 1921, executed and delivered to one Stover, trustee, an oil and gas lease on the south west northeast, the northwest southeast and the southeast southeast section 32, township 18 south, range 15 west, for a substantial cash consideration and a deferred consideration of $60,000 payable out of one-half of the first oil produced from the 120-acre lease. In fact, three leases were executed by said heirs, all in like form covering’ the said land, and all were, on the ordinary form of oil and gas lease generally in use in the El Dorado oil field. These leases provided that they might be assigned, but, if so, the assignee took same burdened with all the duties and obligations assumed by the lessee. On December 8, 1921, Stover, trustee, for a cash consideration, assigned his leases to J. R-. Gardner, who, two days later, assigned same to W. D. Ball for a cash consideration of $66,000 and a deferred oil payment of $12,000, to be paid out of one-half of the first oil produced from the lease after the oil payment due the lessors had been paid. On the same day, December 10, Ball assigned the same leases, except the south quarter of southeast southeast, to F. C. Henderson for a cash consideration of $66,500 and a deferred oil payment consideration of $90,000, to be paid from one-half the first oil produced from the same leases, $60,000 of which was first to be paid the Cates heirs. Henderson thereafter conveyed to the Henderson Company, appellant, his purchase being for the company of which he is the president and principal owner.
On December 16, 1921, W. D. Ball sold and assigned $15,000 of the oil payment due him under his assignment of leases to Henderson to appellee, and on September 30, 1926, J. R. Gardner assigned $9,000 of the oil payment due him under his assignment to Ball to appellee. Appellee then owned $24,000 oil payment, but not due to be paid except out of one-half the first oil produced, and then only after the $60,000 oil payment due the Cates heirs had been paid.
Immediately after acquiring these leases in the manner above stated, appellant began the development of the properties for oil and gas, and, during the first half of 1922, had drilled four wells upon the leased premises, as follows: One in the northeast corner and one in the northwest corner of the southeast southeast; one in the northeast corner of the northwest southeast, indicated on the plat hereafter shown as No. 6, and one in the northeast corner of the southwest northeast, indicated as No. 8. The plat follows:
Section 32, Township 18, Range 15
Gulf Refining Co. No. 5, 200 feet north and 112 feet west of southeast corner of NE14 of section 32-18-15.
Gulf Refining Co. No. 8, 1,500 feet south and 1,120 feet west of northeast corner of section 32-18-15.
During the same time appellant was drilling said wells, other operators were developing their properties in this (the south) field. The Gulf Refining Company drilled four wells on its Cates lease in the southeast northeast. Montgomery drilled four wells on his Cates lease in the northeast southeast. Clark & Greer drilled two wells on their Burns lease, off-setting the north forty of the Henderson lease.
The four wells drilled by appellant were small producers of oil. In 1925 a string of tubing was accidentally dropped in well No. 6, at a time it was making only 15 barrels of oil per day, and the well was abandoned. In March, 1927, appellant’s only producing well was No. 8, off-setting the Gulf lease, and some time prior to March 15,1927, the derrick and pumping equipment, of this well were destroyed by fire. It was decided by appellant not to reconstruct the derrick and equipment, and this well was abandoned. Thereafter, on April 22, 1927, after advice from its attorney that the old lease was no longer effective by reason of abandonment, a new lease was taken from the Cates heirs in the name of J. O. Huffman, as trustee for appellant. This lease was procured through J. E. Gardner, husband of one of the Cates heirs.
On July 18, 1928, this suit was filed by appellee, against F. C. Henderson and appellant, charging that they had failed to drill wells on the Cates lease which should have been drilled; had failed to protect it from drainage by off-set wells, and had failed to operate the wells drilled with proper diligence. It was further charged that Henderson and appellant had conspired with the Cates heirs to take a new lease to Huffman in 1927 and thereby deprive him of his rights under his oil payments mentioned in the assignments above set out in the sum of $24,000, for which amount he prayed judgment against appellant, Henderson, each of the Cates heirs, Huffman and Gardner. The defendants answered, denying the charges of breach of duty and conspiracy, or that they were so indebted. A large volume of testimony was taken, upon consideration of which the conrt found that appellant was in default by its failure to drill well No. 9, shown on the plat, off-setting wells 2 and 3 on the Clark and Greer lease, and that it should have removed the tubing from well No. 6 in 1925, and operated it until the lease was abandoned in 1927. The court further found that appellant owed no duty to appellee to drill wells in addition to the four drilled, except No. 9, and that there was no fraud in the procurement of the new lease in 1927. All parties defendant were dismissed except appellant, against whom judgment was rendered in the sum of $17,592.50 damages, with interest at 6 per cent, from the date suit was filed. This money judg raent against appellant appears to be based upon the testimony of the witness, Hess, to the effect that, given the number of barrels of oil produced on the southeast of the northeast of section 32, he can, within a differential of 3 per cent, to 5 per cent., estimate the exact number of barrels of oil that should have been produced on the southwest of the northeast of said section.
For a reversal of this judgment, appellant makes a number of contentions. First, that it had no obligation as to appellee to drill any wells on said lease, either to develop it, to protect it from drainage by offset wells, or to operate any of the wells that were drilled upon it. We think this contention is sound. Appellee is neither a lessee nor an assignee of the lease. He is simply a purchaser from assignees of the leases of an interest in an overriding royalty or oil payment to become due and payable only if and when a sufficient quantity of oil were produced to pay out of the first one-half thereof his and prior obligations. The written instrument passing title to him of oil payments from Gardner provides: “Do hereby bargain, sell, transfer, assign, set over and deliver unto P. E. Murphy all my rights, title and interest in and to $12,000 (twelve thousand dollars) of the consideration payable out of oil under the terms of a certain assignment executed by me to W. D. Ball,” etc. There was no assignment or sale of an interest in the lease. Appellee’s rights must depend, as said in Murdock v. Sure Oil Corporation, 171 Ark. 61, 283 S. W. 4, “on the protection paragraph of the written assignment,” and, there being no right such as is here asserted, his action must fail. Kile v. Amerada Petroleum Corporation, 118 Okla. 176, 247 Pac. 681; Matthews v. Ramsey-Lloyd Oil Co., 121 Kan. 75, 245 Pac. 1064; Simms Oil Co. v. Colquitt, Tex. Civ. App. 289 S. W. 980.
This court is committed to the rule that, where a portion-of the consideration for an oil and gas lease is payable out of the oil produced, if no oil is produced then there is no payment due. As we said in Gilbert v. Patterson, 174 Ark. 61, 295 S. W. 386: “And the obligation, we think, was to pay out of the first oil produced, and, if no oil was produced, there would be no obligation to pay.” See also Hirsch v. Cadrin & Staten, 178 Ark. 209, 10 S. W. (2d) 2.
The undisputed facts show that appellant paid $66,-500 cash for 110-acre lease; that it drilled four wells thereon at an expense of approximately $60,000; that these wells were not profitable, even on a 7/8’s working interest basis; and that the wells were abandoned because they would not pay operating expenses. It was vitally interested in the development of this property as it had a large sum of money invested. It had the right to exercise its own judgment, in the absence of fraud, and none is shown, in the further development of this property, and, in such situations, the courts will not substitute their judgment for its.
Moreover, the testimony of the witness Hess as to the number of barrels of oil this lease should have made, based on the production of wells on the adjacent 40 acres to the east, is too fantastic, too speculative, conjectural and unreliable to furnish the basis for the judgment rendered. It is simply his guess as to what the lease should produce, and has no substantial foundation in fact.
Reversed and dismissed. | [
116,
109,
88,
93,
56,
96,
14,
-101,
104,
-29,
117,
87,
-51,
126,
0,
117,
-125,
117,
85,
108,
-89,
-93,
18,
81,
-111,
-13,
-15,
-51,
49,
79,
46,
-41,
72,
44,
-54,
-107,
-62,
-94,
85,
92,
-114,
37,
-87,
-28,
-35,
32,
52,
107,
49,
-49,
65,
47,
-5,
41,
89,
-49,
108,
46,
-1,
57,
-55,
-8,
-101,
-123,
31,
23,
0,
68,
-112,
-127,
-56,
14,
-110,
117,
-72,
-20,
91,
-90,
86,
-12,
3,
9,
12,
32,
102,
1,
-28,
-81,
96,
24,
5,
-110,
-99,
-91,
84,
72,
35,
72,
-108,
28,
90,
-99,
5,
-10,
-30,
-107,
92,
124,
-90,
-113,
-42,
-96,
15,
104,
-116,
25,
-13,
7,
53,
84,
-51,
-30,
93,
79,
118,
-101,
-121,
-48
] |
Baker, J.
By petition filed on the 5th day of September, 1934, E. C. Pansons et al. being more than 15 per cent, of the legal voters of Independence County, Arkansas, invoked the aid of Amendment No. 7 to the Constitution of the State of Arkansas to initiate the Independence County Salary Act, which was designated as “Initiative Act No. 1 of Independence County, Arkansas,” with the title: “An act to fix the salaries and expenses of county officeris and to fix the manner in which such compensations and salaries shall 'be paid and to re duce the cost of county government, and for other purposes.”
On the 18th day of September, 1934, the county clerk decided the petitions were insufficient and defective, and on that day notified W. M. Thompson, one of the attorneys, representing the petitioners, that he had so found, and gave as his reasons therefor: “(1) That the petitions were filed with the county clerk and not with the county judge; (2) That the exact title to be placed upon the ballot was not submitted with the petition; (3) That the exact title to be placed upon the ballot was not submitted to the election commissioners; (4) That the title of said act as contained in said petition was insufficient and defective and not complete enough to convey an intelligible idea, and scope and import of the proposed law and not free from misleading tendencies.” These findings were not signed by the clerk. On the 22d day of September the county judge of Independence County considered the matter and found that there were thirteen petitions containing 573 names, praying that there be submitted to the people at the next general election, to be held November 6, 1934, the question of the adoption of the proposed Initiative Act No. 1 for Independence County, and upon this hearing ordered that the clerk certify to the county board of election commissioners of Independence County said Initiative Act No. 1, using as a ballot title the title of the act.
Attacking this order, the appellants herein filed a complaint in the chancery court against J. Ed. Sherrill, county judge, and Edgar Baker, the county clerk, and against the three members of the board of county election commissioners, and pleaded the facts as have been herein set out, alleging that said order was made after the county clerk had declared the petitions to be insufficient and defective, and had notified the sponsors of that fact, and alleging, that the act of the county court was contrary to, or, at least, not authorized by Amendment No. 7, and prayed that the order made by the county court be declared void; and that the court enjoin and restrain the county clerk from giving notice bjr publication, and from certifying to the election commissioners any copy of said petition, and to enjoin the election commissioners from placing said Initiative Act No. 1 upon the ballot.
Several of the petitioners made themselves parties, filed answer to this complaint, and also filed a cross-complaint against the county clerk and the election commissioners for Independence County. In this they stated that the plaintiffs were taxpayers and legal voters; that the petitions were filed with the defendant, Edgar Baker, as county clerk; admitted that the. county judge, J. Ed. Sherrill, had made the order which was made part of the complaint; denied that this order was contrary to Amendment No. 7; denied that it was made after the county clerk had found the. petitions insufficient and defective. They alleged that the petitions were sufficient, and that they contained in themselves a valid ballot title, and that petitioners were entitled to have the matter placed upon the ballot to be voted upon at the next general election. They alleged also that they were en-titled to have the actions of the county clerk reviewed by the chancery court, and that the county clerk should be required to certify the proposed act to the election commissioners; prayed that the election commissioners and the county clerk be required to do all and singular the duties required of them under the Constitution of the State and the laws thereof, and to certify the results of the election upon said Initiative Act No. 1, and for all other proper relief.
Upon the trial of the matter in chancery court, the court found: (1) That the filing of the petitions with the county clerk was a substantial and sufficient compliance with the provisions of Amendment No. 7; (2) That the title of the act contained in the. petition filed with the county clerk is a substantial compliance with' the provisions of Amendment No. 7 of the Constitution, with reference to the filing of a ballot title; (3) That it was not necessary that the ballot title be filed with the board of election commissioners at the time of filing the petition; (4) That the ballot title contained in the petition is sufficient and complete; (5) That said petitions contain the. signature of more than 15 per cent, of the legal voters of Independence County; (6) That the order of the county court approving said petitions and ordering the election thereon was not null and void.
The court dismissed the complaint for want of equity, and ordered and decreed that the county clerk certify the proposed act a's being sufficient, and that defendants in the cross-complaint do and perform all duties as required of them by law to the end that said initiative act be placed upon the 'ballot for the purpose of allowing the same to be voted upon by the legal voters, as to its adoption or rejection at the next general election. It is from this order that the appeal is prayed.
The appeal brings up for our decision the following questions: First, was the title of the act, if it be treated as a ballot title, sufficient? Second, if sufficient, shall the title of the act be treated as the ballot title?
Both questions should be answered in the affirmative.
On the question of the sufficiency of the ballot title, it is argued that § 3' of the act provides for the creation of a new office, a custodian of the county buildings, offices and grounds, at a salary of $50' per month. Section 6 of the act provides that the offices of sheriff and tax collector be severed, and provides for the appointment of a tax collector by the Governor to serve until his successor is elected and qualifies. Section 7 provides that, instead of the sheriff receiving a salary, he shall remain on a fee basis, and the same section provides that the county should furnish bedding, clothing, medicine and medical treatment for prisoners. Section 8 of the act, in addition to fixing the salary of the tax collector, provides that all penalties and fees attaching upon nonpayment of delinquent personal property taxes shall go to the collecting officer who enforces payment. Section 15 provides that all contracts and purchases for supplies and equipment for the several county offices and institutions, amounting to $30 or more, shall be made by the county court, upon invited bids and to the lowest bidder; that most or all of these provisions of the measure are not mentioned or suggested by the ballot title, which should, on account thereof, be declared invalid.
Amendment No. 7 contemplates a liberal construction and, if substantially complied with, tbe proposition should be submitted to the vote of the electors. It provides “that the sufficiency of local petitions shall be decided in the first instance by the county clerk * * * subject to a review by the chancery court,” and also “that, if the sufficiency of the petition is challenged, such cause shall be a preference cause and shall be tried at once, ■but the failure of the courts to decide prior to the election as to the sufficiency of any such petition shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people. ’ ’
As said in Shepard v. McDonald, 188 Ark. 124, 64 S. W. (2d) 559: “When approved by the electors, it becomes a law, subject to the same rules of construction and interpretation as an act of the Legislature, and its constitutionality may be determined in the same way.” In order that the right to legislate for themselves may be exercised, the people have reserved to themselves the right to pay or give compensation for the circulation of petitions and have provided against otherwise unwarranted restrictions interfering with the freedom of the people to enact their own local measures.
The amendment provides for advertisement or publication, “that all measures submitted to the vote of the people by petition under the provisions of this section shall be published as is now or hereafter may be provided by law.” But it was not intended that the officer to whom the petition was submitted should have entire or exclusive control of the petition, but remedies were provided whereby >such petitions could be brought before the electors of the next general election.
Having in mind these and other provisions of Amendment No. 7, it becomes apparent that a liberal construction, or interpretation, in order to make effectual the. purposes intended, is required. We therefore hold that the title of the act set forth in the beginning of this opinion is sufficient as a ballot title to apprise the people of the general purposes of the proposed law. It is true that from, the title all of the matters dealt with in the petition cannot be ascertained. It does not set forth the fact that the offices of the sheriff and tax collector are to be held by different officers, nor the fact that the county is employing a custodian, or janitor, for its public buildings, and it might perhaps, with equal reason, be suggested that it does not state what any officer would be paid. It does, however, show that, instead of the fee system now prevailing, a salary system is proposed for adoption, and that the expenses of the county offices would be controlled, and that its purpose is to reduce the cost of county government, and “for other purposes.” Of course, the expression “and for other purposes,” separated from the text, would mean very little, but read with the ballot title the voter would understand that related matters or items of the cost of county government were subjects of legislation. Notice is given to those who do not desire to read more than a ballot title that the proposed change from the present system has for its general purpose a reduction of the expenses of county government, and that, if the proposed act receives a majority vote, there will be a readjustment of the compensation paid public officers, and of other expenses.
The real objection urged to the title of the act, which we are now treating as the ballot title, is the fact that it is not sufficiently elaborate. Any other ballot title would be susceptible of the same criticism unless it were in itself a complete abstract of .the act, which would be impracticable under ordinary conditions. It can be said, however, with certainty, that there is nothing in the ballot title that is deceptive or misleading. It is sufficiently complete to apprise any elector of the general purposes of the act.
In the case of Westbrook v. McDonald, 184 Ark. 740, 43 S. W. (2d) 356, the ballot title proposed for the referendum of the act of the Legislature of 1931, amending § 3505 of Crawford & Moses’ Digest, was so framed that a voter might understand that the act was such as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of three months, or more, without proof of any of the causes for divorce. Such was the vice of that ballot title.
It did not submit the proposition of the three months period of residence in the State, instead of a year, as under the law was required to be alleged and established by proof, in addition to the cause of divorce.
The amendment provides also that: “All measures submitted to the vote of the people, under provisions of this section, shall be published as is now or hereafter may be provided by law.” It may be observed that if the ballot title were intended to be so elaborate as to set forth all the details of the act, the publication, or advertisement, might, for that very obvious reason, be omitted. Perhaps, no set rule or formula can be announced as to what a ballot title shall contain, but it may be safely stated that, if it shall identify the proposed act and shall fairly allege the general purposes thereof, it is sufficient.
Any voter, not already having knowledge of the intention of the proposed law sufficiently satisfactory to him, upon the mere reading of the title, would no doubt gain such further information as he might desire from due advertisement of it in his county.
It is .seriously argued that the county judge had no right or jurisdiction to act upon the petition, under act 356 of the Acts of 1927. It is unnecessary in this case to decide the powers of the county court or county judge, as this petition was filed with the county clerk and the question was reviewed by the chancery court after the county clerk had held the proposed act insufficient and defective and set out his reasons therefor.
Section 3' of the proposed act provides for the appointment, by the county judge, of a custodian for the county buildings, at a salary of .$50 per month; such custodian to be recommended by two-thirds of the elective officers, and it is made the duty of the custodian to maintain the .county buildings, offices and grounds in proper, sanitary and suitable conditions, and § 6 of the proposed act provides for a severance of the offices of sheriff and tax collector, and for the appointment by the Governor, of a tax collector, until an election can be had, or until such tax collector shall have been elected and qualified. These must be held more as relating to matters of form, rather than substance, and on that account may be both treated together. By reading § 3 of the act, it is readily determined that the custodian is a janitor, who will look after and keep the public buildings in proper, sanitary and suitable condition. It is not urged or suggested that this is any added expense over and above that now prevailing. In fact, the only difference from the ordinary present management in a matter of this kind is that at least two-thirds of the elective officers must nominate the janitor prior to the county judge’s appointment.
The severance of the sheriff’s office from that of the tax collector is not a creation of a new office, nor is it shown or suggested that this will not redound to the best interests of the county. The two offices are distinct, but, in most instances, both have been filled by the sheriff and his deputies. In this case the people may exercise the right reserved to them and pass the proposed act, and afterwards elect a tax collector, or they may prefer that the sheriff continue to collect taxes.
There is no dearth of authority relating to titles of acts of the Legislature or of city ordinances. Perhaps they do not relate to initiative or referendum measures, but, nevertheless, are in point for .those who may be interested in further academic research.
The general rule has been announced by the Maryland courts. It is one of the States in which there is a constitutional requirement to the effect that acts of the Legislature or city councils shall be confined to one subject set out in the title of the act or ordinance. Chief Justice McShekry says: “It has never been understood that the title of a statute should disclose the details embodied in the act. It is intended.simply to indicate the subject to which the satute relates * * *. When the general subject is indicated, no detail matters need be mentioned in the title. ‘The primary object of the provision, undoubtedly, is to exclude all foreign, irrelevant, or discordant matter from the statute and to confine the statute to the single subject disclosed in the title.’ Phinney v. Trustees, 88 Md. 636, 42 Atl. 58.” Mayor of City of Baltimore v. Stewart 92 Md. 535, 48 Atl. 165, 168. Mayor and City Council of City of Baltimore v. Fuget, 164 Md. 335, 105 Atl. 618-622.
In answer to the second question above, as follows: ‘ ‘ Second, if sufficient, shall the. title of the act be treated as the ballot title?” we suggest that Amendment No. 7 makes no provision or requirement that the measure proposed shall be given a. title. In fact, the. mandate for a ballot title is such as to permit the petitionens to file a separate instrument indicating the ballot title, as was done in the cases of Westbrook v. McDonald, 184 Ark. 740, 44 S. W. (2d) 331, and Shepard v. McDonald, 188 Ark. 124, 64 S. W. (2d) 559, and, by the same authority, when done in that manner, the instrument fixing the ballot title becomes a part of the petition, so, if the ballot title is a part of the petition, the requirement has been met.
We hold therefore that when, in a local measure presented by petition, the title of the measure., when given one, is incorporated in, and made a part of the petition, the said title becomes and is the ballot title.
It is urged further that there was no submission of the ballot title to the county board of election commissioners. Amendment No. 7 does not require, in the matter of county or municipal measures, that the ballot title should be submitted to the board of election commissioners simultaneously with the filing of a petition. It-may be done at any time prior to the time of the preparation and printing of the ballots, and, if so done, it becomes the duty of that board to place the. same upon the ballot. The members of the board of election commissioners of Independence County are defendants on the croisscomplaint and were so ordered by the chancellor trying the cause.
We hold therefore that the title of Initiative Act No. 1 under consideration is sufficient as a ballot title, that there was no error in the. decree in so holding, and in ordering the board of election commissioners to place the same on the ballot.
The case is therefore affirmed. | [
54,
-19,
-8,
110,
-22,
64,
18,
-122,
82,
-127,
-25,
83,
-23,
83,
28,
113,
-29,
61,
81,
123,
-60,
-78,
115,
106,
34,
-77,
-35,
-43,
117,
-49,
-28,
-4,
74,
49,
-38,
-43,
71,
-30,
-49,
-100,
-50,
-126,
-117,
-50,
89,
-126,
22,
38,
50,
-117,
113,
-66,
-22,
60,
50,
67,
77,
100,
-39,
-117,
83,
-85,
-102,
77,
123,
6,
-95,
-29,
27,
1,
-48,
110,
-68,
48,
-62,
-56,
62,
-90,
2,
86,
7,
57,
8,
106,
102,
18,
-67,
-25,
-96,
-86,
22,
-2,
45,
-90,
-42,
121,
74,
77,
-74,
-99,
94,
-112,
74,
116,
-31,
-59,
29,
44,
-114,
-54,
-44,
-89,
5,
108,
12,
3,
-21,
78,
16,
113,
-114,
-9,
95,
-57,
18,
-101,
-59,
-96
] |
Mehaffy, J.
This suit was brought by the appellee against the appellant in the Sebastian Circuit Court on an insurance policy issued to appellee’s father, E. C. Dunbar. The original certificate or policy was issued March 18, 1899, and various certificates had been issued to him in lieu of the original policy. It is admitted that all assessments and dues from that time up to January, 1933, were paid. The suit was for $1,000, less some charges, and complaint was in the usual form. The appellant answered, admitted issuing the certificate on the date mentioned and that the dues and assessments were all paid except the assessment or dues which were clue the last day of January, 1933. Appellant defended on the grounds that the dues due in January were not paid until February 16, and that Dunbar was at that time not in good health but suffering from tuberculosis. He died on May 7, 1933. The certificate or policy of insurance was introduced in evidence and also a letter from the appellant association dated May 31, 1933, stating that a check had been sent to Mrs. Kropp for $1.60, being a refund of the January and February installments, and she was advised that the financial secretary at Fort Smith, Arkansas, had been instructed to return any amounts paid for subsequent installments. Mr. Dunbar applied for admittance in the Woodmen of the World Sanitarium in the latter part of March, 1933.
A. M. Waldron, captain of the uniform rank of the Woodmen of the World, testified that he was a member and knew Dunbar. He testified that B. H. Smith, financial secretary of the Local Camp of the Woodmen of the World, keeps the records of the payments of assessments and collects the same from the members. Witness called at Smith’s office to ascertain whether or not Dunbar was in good standing, and Smith told him that he was. Smith had been secretary for about four years. This witness went with Mr. Kropp to the office of Smith, the secretary, to interview him with reference to hospitalization of Ed Dunbar. Mr. Smith said that Dunbar had a policy, and the best of his recollection is that his assessments were paid; he said he was in good standing. Smith gave Mr. Kropp an application for hospitalization. It was about the 12th or 15th of the month. The application was made by Dunbar the latter part of March.
Dr. Riley testified that he examined Dunbar March 15, 1933, in Booneville, Arkansas, and that he had very advanced tuberculosis in his lungs. That there was no question in his mind but that Dunbar was suffering from active tuberculosis.
B. H. Smith, the financial secretary, testified and introduced the card record which is the final record of the membership standing. This record is kept by Smith, and he testified that the January assessments were paid on the 16th of February; that the February report shows that Ed C. Dunbar was suspended for nonpayment of January dues. The March report was sent in for February dues on March 13. It shows that Dunbar was remitted for by the secretary for the months of January and February. He further testified that Dunbar was suspended February 1, but that the reports did not leave his office until the 13th and did not get to the home office until the 16th. That he stood suspended as of January 31st. On February 16th he was under suspension. He also testified that he did not tell Mr. Kropp or Mr. Waldron that Dunbar was in good standing because he said that is up to the home office. He did not know that Dunbar had tuberculosis at the time payments were made. It was admitted that the payments were returned. He said that Dunbar’s sister made the payment, and he asked her why she did not come in sooner, and she said Ed had been sick. Mr. Kropp made the payment in March. Witness had been financial secretary for sis years. It is the duty of the secretary under the by-laws to remit to the Sovereign Camp on or before the 5th day of every month the funds in his hands, and accompanying the remittances he must forward a detailed statement of the standing of members in the camp on blanks furnished for that purpose. He mailed the February report on March 13. A provision of the by-laws provides that if the remittances from the secretary are not received on or before the 15th day of the month the camp and all its members shall stand suspended. Witness said that he did not get any information that the camp was suspended. The report did not reach the home office until February 20th. Witness further testified that at different times in the past he had maintained Ed Dunbar in good standing by the payment of the dues himself. He said that prior to this date, February 20th, he had reported Dunbar suspended, but said he could not tell without going to his records. Prior to this time he had loaned Dunbar money to pay his dues. He loaned him about $25 and Dunbar assigned to him another insurance policy, and after Dunbar died he got his money. The secretary of the association at Omaha, Nebraska, is supposed to mail out a notice of the suspension. The evidence does not show that Dunbar ever received this notice. The secretary further testified that he mailed the notice to him before he was suspended, around the 5th of February. He testified that he paid the dues for him, that there was no enmity between them, and that he did not fail to make the payment because he was mad at him; he did not consider that he had a chance to get his money. He also testified that Waldron called him up and asked him if Dunbar’s dues were paid, and he thinks, he told Waldron that Dunbar was entitled to hospitalization. Whenever members failed to pay before secretary sent in his report, he sent them in as suspended unless he wanted to stand personally responsible for the payment of their dues. The question of Dunbar being admitted to the hospital came up after February 16, after the- secretary’s report went in. Certain receipts were handed him, and he said there were other amounts included, that Dunbar had other policies, that his record shows that the January assessment was not paid. Before that time Dunbar had made the payments in the regular course at witness’ office; witness had not paid any of the later assessments in 1932.
Dr. J. E. Little testified that he was at Dunbar’s home on the 15th or 16th of February; that Dunbar had a cold and was very sick. He was in his office then at different times up to the 14th of March. He had a cough, and witness found trouble with his lung’s; thinks he had tuberculosis but does not know. He died in the tuberculosis sanitorium at Booneville. Witness did not find that he had tuberculosis; he just had a bad cold. He said some people take tuberculosis quickly, and from his examination in March he thinks perhaps Dunbar had consumption, but he examined him in February and found no indication of it.
Here several provisions of the constitution and bylaws -were introduced.
John T. Yates testified by deposition about the issuance of the original policy and the changes made and identified the constitution and by-laws. He said that Dunbar failed to pay the January, 1933, installment to the financial secretary of the Local Camp on or before January 31st as required by the provisions of the beneficiary’s certificate and constitution and by-laws. That he obtained this information from the regular monthly report which he received from B. H. Smith, financial secretary of the Local Camp. Then he testified about refunding the payments. He also testified that Dunbar did not pay the increases and therefore his policy was chargeable with $385.11. He then introduced several letters.
Appellant contends that the court erred in refusing to direct a verdict for it because Dunbar failed to pay his January assessment and thereby became suspended. The by-laws provide that, if one fails to make payments on or before the last day of the month, he shall become suspended and his certificate shall be void, etc. It also provides however, that, if the person suspended is in good health, he may make a new contract or, if he is suspended for the nonpayment of installment, if in good health, he may within three months from the date of his suspension again become a member of the association by the payment of current installment assessment and all installments which should have been paid to maintain him as a member. It is contended first, that he did not make the January payment until the 16th of February, and at that time he was not in good health but had tuberculosis. The only evidence tending to show that he failed to make the January payment is the testimony of Smith, secretary of the Local Camp, and he testified that he thought Dunbar was entitled to hospitalization, although he knew that, if he was suspended or not in good standing, he was not entitled to hospitalization. His testimony, we think, was such that the jury would have been justified in finding that the January dues had been paid. The burden was upon the appellant to establish the fact that the dues had not been paid by a preponderance of the evidence. “While the burden is on the plaintiff in an action on a benefit certificate to show insured’s good standing at the time of his death, still, as the certificate is proof of good standing at the time of its issuance and raises a presumption that such good standing continued, it follows that when the certificate is introduced, the burden is on the association to prove loss of good standing. * * * And generally, in an action on a policy or mutual benefit certificate, the issue of the policy or certificate of insurance, and the insured’s death being shown by plaintiff, the burden is on the company to show nonpayment of premiums or dues or other matters going to avoid the policy.” Cooley’s Briefs on Insurance, vol. 4, 3863-3864; United Order of Good Samaritans v. Reavis, 186 Ark. 1143, 57 S. W. (2d) 1052; Supreme Council American Legion of Honor v. Haas, 116 Ill. App. 587; Ry. Passenger & Freight Conductor’s Mutual Aid & Benefit Ass’n v. Thompson, 91 Ill. App. 580; United Brotherhood of Carpenters & Joiners of America v. Fortin, 107 Ill. App. 306; Sleight v. Sup. Council of Mystic Toilers, 133 Iowa 379, 107 N. W. 183; Kidder v. Sup. Commandery, United Order of Golden Cross, 192 Mass. 326, 78 N. E. 469; Hood v. Sov. Camp Woodmen of the World, 188 Ark. 1048, 69 S. W. (2d) 880.
It is next contended by appellant that there is no question of estoppel in the case, and for that reason it especially objected to instruction No. 1 given at the request of plaintiff because of that portion of the instruction with reference to the acts of the local secretary constituting an estoppel. It is argued that the by-laws do not permit the local camp or officers to waive any of the provisions of the contract and that the acts of the local secretary could not operate as an estoppel. The by-laws, however, provide that, unless the local secretary makes his report by the 15th of the month, the camp and all of its members are suspended. The undisputed evidence shows that the local secretary frequently made his report after the time provided for by the by-laws and no action was ever taken. It thereby waived the right to suspend the members or the local camp because of a failure to comply with this by-law.
The fact that the local secretary did not make his report on time was necessarily known to the Sovereign Camp. This court quoted with approval, the following: “Forfeitures are so odious in law that they will be enforced only where there is the clearest evidence that such was the intention of the parties. If the practice of the company and its course of dealings with the insured, and others known to the insured have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted on, the company will not be allowed to set up such a forfeiture, as against one in whom their conduct has induced such belief. * * * The clerk, through a period of years, had adopted the method set forth in the original opinion, which was clearly calculated to induce the belief on the part of Newsom that his dues had been paid according to the method adopted by the local clerk for collecting the dues and reporting the same, and that the society had accepted such payments and would therefore not insist upon a forfeiture because of the failure of the clerk to comply, in this respect, with its laws and constitution.” Sov. Camp W. O. W. v. Pearson, 155 Ark. 328, 244 S. W. 344.
The evidence in this case shows that Dunbar had paid his assessments regularly for thirty-four years, and the only evidence that he failed to pay his January dues on time is the testimony of the secretary of the local camp, contradicted by some of his own statements, especially when he stated that he was entitled to hospitalization, when he would not have been if he had not been in good standing, and this evidence given after Dunbar himself had died and could not testify. Moreover, the secretary admits that he had been in the habit of paying his dues, although he said he did not do it in the later part of 1932. We think it is wholly immaterial in this case whether there was a waiver or estoppel or whether Dunbar was in good health, because, the jury would have been justified in finding that the appellant had failed to show by a preponderance of the evidence that the January dues had not been paid.
It is next contended by the appellant that the court erred in allowing the provision of the constitution in regard to incontestability to be read to the jury. The appellant itself introduced the constitution and bylaws, and in construing them it was perfectly proper to consider the whole of the constitution and by-laws and construe all of its provisions together. Moreover, ■ the parties agreed in the trial that the constitution and by-laws were considered as having been introduced in evidence with the agreement that either side might offer such parts as it desired. There was no error in permitting this section to be read to the jury.
It is contended that there were errors in the instructions, but the instructions, when considered as a whole, constitute a correct statement of the law, and it would serve no useful purpose to discuss them at length. Each side requested instructions, which were given by the court, on practically every feature of the case.
We find no error, and the judgment is affirmed. | [
48,
-2,
-68,
-19,
8,
-31,
42,
-70,
82,
-127,
-91,
83,
-7,
87,
13,
103,
-23,
45,
65,
104,
-26,
-77,
51,
34,
-46,
-13,
121,
-59,
48,
77,
-28,
-36,
77,
56,
2,
-111,
-30,
-60,
-59,
-100,
78,
-128,
-83,
-28,
-39,
80,
56,
-1,
20,
79,
113,
-105,
-6,
42,
21,
75,
13,
44,
-17,
-87,
-48,
-15,
-126,
5,
-1,
22,
33,
86,
-102,
-59,
72,
14,
-104,
-79,
-44,
-8,
115,
-74,
-58,
52,
35,
-87,
12,
102,
98,
49,
-79,
-25,
-88,
-104,
46,
-78,
-97,
-91,
-74,
121,
27,
12,
-74,
-99,
126,
4,
-105,
124,
-12,
85,
28,
40,
3,
-113,
-10,
-95,
-113,
-76,
-100,
-125,
-17,
15,
54,
113,
-115,
-94,
93,
71,
126,
-101,
-121,
-70
] |
McHaney, J.
"While separate appeals have been taken in these several cases and separate- 'briefs filed, except in the Denison and Rodgers cases, which were consolidated and briefed together, we- are treating them as one case for the purpose of this opinion, since the same or similar questions are involved in all of them. The Sparling case, No. 3496, brings into question the constitutionality of act No. 11 of the first Extraordinary Session of the General Assembly of 1934, which act was approved February 12,1934-, as a whole and as to certain sections thereof. The other appeals question the right of the State lawfully to levy and collect a tax on gasoline sold or used in this State for agricultural and industrial purposes. In other words, that only such gasoline as may be used in propelling motor vehicles over the highways of this State may be lawfully taxed. Further contentions are that, “even though the act (act 11) be held to apply to and impose a tax on gasoline bought or sold within the State, regardless of the- character of use, such holding would not necessarily impose a tax on gasoline bought without, transported within, and thereafter used” for agricultural and industrial purposes; that said act does not impose, a' tax on gasoline except such as may be used in motor vehicles on the highways; and that, if it does, it contravenes § 5 of article 16 of the Constitution of this State. The chancery court sustained a demurrer to the complaint in each case, and judgments of dismissal were entered.
Turning now to a consideration of the attack made on the constitutionality of the act in the Sparling case, we find a number of grounds argued in support of the allegations of the complaint seeking to enjoin the “Refunding Board” from proceeding under the act. Section 1 thereof creates a “Refunding Board” composed of the Governor, Lieutenant-Governor, Treasurer of State, Secretary of State, State Auditor, Attorney General and State Bank Commissioner. It is argued that this section contravenes § 6 of article 19 of the Constitution, which provides: “No person shall hold or perform the duties of more than one office in the same department of the government at the same time, except as expressly directed or permitted by this Constitution.” And further that it violates § 10 of article 5, which provides: “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.” A sufficient answer to the first part of this contention is that the members of the Refunding Board are not holding or performing the duties of more than one office, membership on said board not -being an additional office, but only additional duties imposed by the act on the holders of the respective offices. A sufficient answer to the second part of this contention is that the Lieutenant-Governor is neither a Senator nor a Representative. By express provision of § 1 of amend ment No. 6 to the Constitution, the Lieutenant-Governor is an executive officer — a member of the Executive Department of State. Section 5 of amendment 6 provides that he shall be president of the Senate, and may vote in case of a tie, but this does.not make him a Senator. Moreover the creation of this board was not the creation of a new office, nor are its members new officers. As heretofore stated, new duties are imposed on existing* exec utive officers. The executive State officers are now members of various boards and have, for a long period of time served thereon, such as the State Board of Election Commissioners, State Burning Board, State Printing Board, etc., and many others in the past which have been abolished. See Bruce v. Matlock, 86 Ark. 556, 111 S. W. 990; Russell v. Cone, 168 Ark. 989, 272 S. W. 678.
The second contention is that § 22 of the act is violative of § 5, article 15 of the Constitution. This will be considered later in this opinion in connection with the Denison and other cases.
It. is next contended that § 51 of the act is violative of § 1, article 5, of the Constitution which provides that “the legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives.” Section 51 of the act provides that when the net revenue credited to the State Highway Fund in any fiscal year shall exceed $10,000,000 and the Refunding* Board finds that a reduction of the tax on gasoline during the succeeding year could be made without reducing the net revenue below that sum, said board may, “in its discretion,”' determine the amount of possible reduction, and make an order to that effect, not to exceed one-half of one cent a gallon. It is said this is a delegation of legislative power, because it vests a discretion in the board. This is not a delegation of legislative power, as we have many times held. In Harrington v. White, 131 Ark. 291, 199 S. W. 92, this court quoted with approval from Cincinnati, etc., Rd. Co. v. Commissioners, 1 Ohio State 77, as follows: “The true distinction * * ’* is between the delegation of power to make the law which necessarily involves the discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance . of the law. The first cannot be done. To the latter no valid objection can be made.” And in State v. Martin & Lipe, 134 Ark. 420, 204 S. W. 622, it was said: “It is a well-established rule of law that legislative bodies have no right to delegate the law-making power to executive officers or administrative boards, but it is settled in this State that the Legislature may delegate ‘the power to determine some fact or state of things upon which the law makes or intends to make its own action depend.’ Boyd v. Bryant, 35 Ark. 69.” Many other cases might be cited to the same effect. Section 51 therefore does not delegate a legislative function, but confers authority or discretion as to its execution to be exercised under and in pursuance of its provisions.
Other contentions are that the act is void because § 55 gives the Governor the power within 30 days after its approval to direct the board not to issue any bonds; in other words, to suspend the act, in violation of § 12 of article 2 of the Constitution; that it attempts to suspend the statute of limitations with respect to actions on road improvement district bonds; that the bill for the act was not properly passed in both houses; that the exchange of direct State obligations for those of road improvement districts is violative of § 1 of article-16 of the Constitution ; and that the tax on gasoline may not be used to pay road district bonds. We have carefully considered all these questions and find them without substantial merit. To discuss them in detail would unduly extend this opinion. However it may be said that the Governor has not suspended the act and that the 30 days time for doing so has elapsed; that limitation of actions is subject to control by the Legislature; that the records of both Houses, of which we take judicial notice, show the act was properly passed; and that the payment of road district bonds with State bonds is not violative of § 1 of article 16 of the Constitution. Tapley v. Futrell, 187 Ark. 844, 62 S. W. (2d) 32; Jobe v. Urquhart, 102 Ark. 470, 143 S. W. 121; Hays v. McDaniel, 130 Ark. 52, 196 S. W. 934; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9.
We now come to a consideration of the points' raised and argued on the other appeals. In the Denison and Rodgers cases the gasoline sought to be taxed was purchased in Tennessee in large quantities, shipped into Arkansas and stored in tanks adjacent to the levees which they were engaged in constructing, and was to be used in such construction work. No part of it was to be used in propelling motor vehicles over the highways. In the Lowden et al. case, the trustees in bankruptcy of three railroad companies — the Rock Island, the Missouri Pacific and the Frisco — seek to enjoin the Commissioner of Revenue from collecting the tax on gasoline used in propelling motor cars over their respective railroads. The contentions of all these appellants are substantially the same.
Prior to the passage of the “Refunding Act” (act No. 11 now under consideration), such gasoline as was used by these appellants for purposes other than use on the State’s highways was not taxable. In actual practice, except where bond was given, the tax on gasoline used for agricultural, industrial, domestic, railroad, levee, counties, cities, towns and miscellaneous purposes was paid by the consumer but the State refunded such tax on refund claims properly made and filed. During the calendar year 1933, out of a total tax collection of $6,542,024.79, refunds were made by the State in the sum of $553,596.38, or approximately 8 per cent, of the total collection. Perhaps from 50 per cent, to 90 per cent, or more of that amount was fraudulent. At any rate, based on past experience, the Legislature in § 24 of the “Refunding Act” repealed all prior provisions of statute authorizing refunds in the following language: “Section 44 of act No. 65 of the G-eneral Assembly, approved February 28, 1929, as amended: Paragraphs 3, 4 and 5 of § 39 of said act No. 65; paragraphs A and B of § '52 of said act No. 65, Act 127 of 1933, § 6 of act 36 of 1933, and paragraph (f) of § 24 of said act 65, are hereby repealed, provided however that refunds of the tax collected under this act on motor vehicle fuel used for industrial purposes as now provided by law in carrying out contracts entered into for public works and g-uasi-public works prior to the first day of January, 1934, shall be made in the manner provided for by the sections and paragraphs hereby repealed.”
Now, in the face of this section, it is seriously contended that the Legislature did not mean or intend to tax gasoline other than that used on the highways. The act further provides in § 22: “There is hereby levied a privilege or excise tax of six and one-half cents on each gallon of motor vehicle fuel as defined in this act, sold or used in this State or purchased for sale or use in this State.” Motor vehicle fuel is defined in § 19 (b) of the act as follows: “(b) ‘Motor Vehicle Fuels’ are those fuels known as gasoline, benzine, naphtha, and such other volatile and inflammable products produced or blended for the purpose of operating or propelling motor vehicles as defined in paragraph (a), provided the product commonly known as ‘Kerosene Oil,’ and fuel having an antiknock rating of not less than eighty octane when tested in a series 30 knock testing engine, at a jacket temperature of three hundred and seventy-five degrees Fahrenheit, known as aircraft fuel, and the product known as distillate, as defined in the following sections,, are not motor vehicle fuels.” Section 25 provides: “The purpose of this act is to provide for the payment and collection of an excise or privilege tax on the first sale of motor vehicle fuels when sold, or the use, when used in this State; double taxation is not intended. Motor vehicle fuel manufactured, produced or compounded in or imported into this State and subsequently sold for exportation, is not taxable. The tax levied is to be collected at the source in this State of the manufacturer or wholesaler when sales of any motor vehicle fuels are made, and when not sold in this State, then when first brought into this State for use herein.” Again it is provided in § 29 that: ‘ ‘ The intent of this act is to provide for the col- „ lection at the source within this State of a tax on the sale or use of motor vehicle fuel.” It then defines “the source” as to the manufacturer and the wholesaler. Section 30 provides as to refunds the following: “Refunds of taxes on motor vehicle fuel used for industrial purposes and domestic purposes as now provided by law shall be made where such uses were made of such fuel before the passage of this act and where such' uses shall be made in carrying out existing contracts for public works and g"Masi-public works, entered into prior to Januaiy 1, Í934, but all claims for refunds shall be filed within thirty days from the effective date of this act as to such uses heretofore made and within thirty days after such uses hereafter made in carrying out existing contracts for public works.”
These provisions of the act appear to us to be clear and unambiguous. Section 22 undoubtedly levies a tax of six and one-half cents a g*allon on motor vehicle fuel as defined in the act, and § 19 defines “motor vehicle'fuels,” naming them, as those “produced or blended for the purpose of propelling motor vehicles as defined in paragraph (A).” The word “purpose” as therein used means suitable for, adapted to or susceptible to. Therefore it was the clear intent of the Legislature, when these various provisions are considered together, from the language used, to tax all motor vehicle fuel sold or used in this State, regardless of the purpose to which it is put. This intention is further reinforced by the fact that the journals, of which we take notice, show that numerous amendments to exempt gasoline used for agricultural, industrial and domestic purpose from the levy of the tax, were offered, but defeated. Appellants Denison and Rodgers insist that, since their gasoline was purchased out of this State and brought into this State for use here, it is not taxable. It is difficult to follow the reasoning of these appellants in this regard. We think the fact it was bought in another State can make no difference, as the tax is also levied on the use of it in this State wherever it may have been purchased, and when brought here for use here, it loses its interstate character and becomes taxable.
But all appellants say that, if act 11 be so construed as to levy a tax on' gasoline used for agricultural and industrial purposes, it is unconstitutional and void as being in violation of § 5 of article 16 of the Constitution. This is by far the most vital point raised and the one that has given us most concern, when viewed in the light of former decisions of this court. The germane -part of this constitutional provision follows: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, provided the General Assembly shall have power from time to time the tax hawkers, peddlers, ferries, exhibitions and privileges, in such manner as may be deemed proper.” This court has had occasion to consider this provision in a great variety of cases. See annotation to this section in Crawford & Moses ’ Digest, (page 104).
It may be well to state at the outset that the fact that the act designates the tax as “a privilege or excise tax” does not necessarily make it so, for, as said in Dawson v. Kentucky Dist. Co., 235 U. S. 288: “The name by which the tax is described in the statute is, of course, immaterial. Its character must be determined by its incidents.” We are of the opinion, after so considering the act, that it is a privilege tax — a tax on the privilege of selling and using gasoline in this State, payable at the source as defined in the act, for substantially the only available use to which it may be put, for highway travel. While it is true that gasoline is used for other purposes than propelling vehicles over the highways, still the percentage of gasoline so used is comparatively negligible. Since the tax is levied and paid at the source, there is no way for the manufacturer or wholesaler to know when a sale is made, the use to which it will be put, whether for road purposes or otherwise. It is also true that the right to tax gasoline was sustained in Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S. W. 753, on the theory that it was a tax for the nse of the highways, and that such use was a privilege subject to tax. There it was contended that the only available use of gasoline was for propelling motor vehicles over the highways and that a tax on the only available use to which the article is susceptible is in effect a tax on the article itself. The court refused to accept such contention as sound and said: “It may be conceded that a tax on gasoline for its only available use would, in effect, be a tax on the commodity itself, but such might not be the case as to other articles, and we are unwilling to subscribe unqualifiedly to the doctrine that a tax on the only available use of an article is in every instance a tax on the article itself. In fact, this court repudiated the doctrine in the case of City of Ft. Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679, 58 L. R. A. 921, 91 Am. St. Rep. 100.”
While it is true that it has been generally considered, since the decision in Standard Oil Co. v. Brodie, supra, that the State is without power to levy and collect a tax on agricultural and domestic gasoline, it is also true that, prior to that time (1921), it was generally doubted that such a tax could be levied for road purposes or any other purpose. It was also thought and seriously contended that a severance tax could not be imposed, and this court had great difficulty in arriving at the conclusion that such a tax was within Legislative power. See the different opinions in Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S. W. 741. See also Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720, for doubts about the validity of an income tax law. The Constitution of this State was adopted in 1874. It was not made for those times alone. It was intended to be, and is, a living, growing instrument, yielding to the necessities of the people in the advancement of civilization. This court has for nearly 100 years so regarded it and .former Constitutions and has broadened and expanded its construction of them to meet the necessities of the people of this State. It is true that this court has always held that the Legislature cannot lay a tax for State revenue on the theory that it is a privilege tax on occupations that are of com mon right. The State is not taxing the right to sell or the right to use gasoline, but only the sale and the use for highway purposes, as only a negligible per cent, is used otherwise. To this we perceive no constitutional objection. It is in accord with Standard Oil Co. v. Brodie, supra. See Monamotor Oil Co. v. Johnson, 292 U. S. 86, 54 S. Ct. 575. Nor can we see why appellants should raise the question. None of them can be hurt by the imposition of the tax. Appellant contractors will take it into account in bidding for contracts. Appellant railroads are forever relieved of the road improvement district taxes which they formerly paid in annual sums largely in excess of the tax now paid. Agriculture is relieved in the same way as the railroads.
Let it be definitely understood that the tax imposed is not a property tax, but is a privilege tax for the use of the highways, and that the Legislature has declared the public policy of the State to be to tax all gasoline sold or used in this State for such purpose in order to prevent fraud and imposition on the State in the sale or use of a comparatively negligible quantity for other purposes.
Let the decrees in all cases be affirmed. It is so ordered.
Mr. Justice Smith and Mr. Justice Butler dissent from so much of the opinion as holds the tax'on gasoline for industrial, agricultural, etc., purposes is not a property tax.
■ | [
112,
-22,
-36,
44,
75,
96,
2,
26,
88,
-79,
-91,
83,
-87,
-126,
-123,
85,
-5,
127,
117,
91,
-27,
-74,
87,
67,
54,
-13,
-37,
-49,
49,
75,
-12,
119,
12,
40,
-54,
-43,
6,
66,
-59,
-34,
14,
8,
56,
-53,
-39,
-64,
52,
110,
115,
-117,
97,
-113,
-29,
44,
28,
67,
105,
46,
-39,
-71,
-119,
-79,
-66,
7,
127,
6,
49,
86,
-99,
-125,
-56,
62,
-100,
17,
88,
-7,
123,
-92,
-62,
-44,
11,
-39,
8,
98,
102,
-125,
37,
-17,
-100,
-88,
38,
-41,
-115,
-124,
-48,
17,
99,
-88,
-105,
31,
122,
2,
79,
122,
-18,
-59,
95,
124,
13,
-114,
-106,
-95,
-121,
116,
-110,
64,
-49,
-93,
18,
117,
-51,
-34,
84,
101,
18,
27,
-121,
-28
] |
Smith, J.
Appellant was tried and convicted in the court of a justice of the peace upon a charge of transporting intoxicating liquors, and duly appealed to the circuit court, where he was again tried and convicted, and he has prosecuted this appeal to reverse the judgment of the circuit court. A reversal of the judgment is asked upon the ground that the evidence was insufficient to sustain the conviction, and no other question is presented.
The sheriff of the county and his deputy suspected that appellant had whiskey in his automobile, and they followed him in their car as he drove out of the town of Murfreesboro in his. They followed him for about a mile out of town on the road to the diamond mine. Appellant stopped on the side of the road, and got out of his car, but when he saw the officers approaching he got back in the car and started driving off. He drove only a short distance, when he was commanded to stop his car, and upon the failure of appellant to obey the command the sheriff fired his pistol. Appellant then stopped his car, and when the officers went to it they found the floor of the car wet with whiskey and a lot of broken glass and the rim of a fruit jar on the floor of the car.
It is not certain when the whiskey was placed in the car, but it is not only fairly inferable but the conclusion appears to be inescapable that when appellant realized he was being followed he sought to dispose of the whiskey, and breaking the jar which contained it was the method employed for that purpose. If the liquor was in the car — and it was — although the vessel which contained it had been demolished, it had necessarily been transported for some, appreciable distance, and the verdict may not, therefore, be said to be unsupported by sufficient testimony.
The case on the facts is not unlike that of Walbert v. State, 176 Ark. 173, 2 S. W. (2d) 17. There officers had followed a car in which it was suspected that intoxicating liquor had been transported for a quarter of a mile. When the car was overtaken no liquor was found in it, but liquor was found near the place where the car had previously stopped. It was held that this testimony was sufficient to support the finding that the liquor had been transported in the car.
In the case of Locke v. Fort Smith, 155 Ark. 158, 244 S. W. 11, it was said: “* * * the Legislature only intended to make criminal the removal of intoxicating liquors from one locality in the State, or in a city or county, to another locality in the State, or city or county. These places must be separate and distinct from each other, or the offense under the statute is not complete. To constitute the offense the liquor must be in the act of being conveyed from one objective point to another. The name of one or even both of the places mig*ht be unknown, but it must be shown, inferentially at least, that the defendant was in the act of carrying the intoxicating liquor from one. place or locality to another in order to render him guilty under the statute, or under an ordinance based upon the statute. We think this holding is in accord with Hager v. State, 141 Ark. 419, 217 S. W. 461.”
It is unimportant therefore that the testimony in the instant case does not sufficiently show at what point or place the whiskey was put in the car or its destination. It was being transported, and had been transported, and the'fact that the container was broken and the whiskey had wasted and spread ont on the floor of the car did not affect the criminality of the act.
The judgment must therefore be affirmed, and it is so ordered. | [
-80,
-18,
-20,
30,
58,
112,
-86,
-68,
-61,
-21,
-12,
83,
-19,
66,
1,
35,
-85,
123,
117,
105,
-43,
-73,
7,
81,
-14,
-77,
122,
-57,
-73,
75,
108,
-44,
13,
112,
-54,
-35,
102,
-56,
-61,
-40,
-50,
-124,
-71,
-23,
82,
-110,
44,
106,
6,
15,
113,
31,
-26,
46,
25,
-61,
105,
60,
75,
-83,
-64,
121,
-100,
23,
-17,
4,
-79,
84,
-99,
1,
-40,
58,
-104,
49,
8,
-8,
115,
-74,
-128,
-12,
45,
-119,
-116,
96,
98,
37,
121,
107,
-84,
-120,
46,
-82,
-97,
-89,
24,
89,
73,
97,
-66,
-35,
126,
16,
14,
-16,
-22,
85,
81,
96,
7,
-53,
-80,
-111,
13,
56,
-126,
23,
-21,
-89,
36,
112,
-43,
-22,
92,
69,
112,
-101,
-58,
-41
] |
Smith, J.
This appeal is from a judgment sentencing appellant to a term of seven years in the State penitentiary upon conviction under án indictment charging him with having shot and killed Le Roy Scott. The testimony on the part of the State was to the effect that appellant overtook Scott, who was escorting one Alberta. Furlow to an entertainment, and shot Scott without provocation after the latter had run some distance along the road in which all three of the parties — all of whom were colored — were walking. Appellant admitted having fired the fatal shot, but testified that he fired after Scott had assaulted him with rocks, which were thrown at him by Scott, one. of which struck his hand and bruised it badly. According to the testimony of Alberta Furlow, appellant spoke angrily to deceased when they were overtaken in the road by appellant, and deceased said, “Gro on, Jesse, I am not bothering you,” and appellant said, “You is the one I wants to see.” Following this remark appellant presented a gun, which Alberta had not previously seen, as it was after darkness had fallen. Deceased ran and was pursued up a hill by appellant, and after they had run far enough to be out of sight, but not out of hearing she heard deceased say, “I will run no further; shoot, damn you!’’ And the fatal shot was immediately fired. When Alberta reached the scene of the shooting, deceased was dying, and he died without speaking to her.
There was testimony corroborating and other testimony contradicting the. testimony given by Alberta, but it is unimportant to set it out, as the question of her veracity was one for the jury, and her testimony above recited was sufficient to sustain, not only the verdict returned, but would have supported a conviction for the highest degree of homicide.
Alberta was a married woman, but had not lived with her husband for several years. She was asked if she had not, aftef leaving her husband, lived with deceased as his wife, both in this State and in the State of Oklahoma. She denied that she had. Rass Richerson, her brother-in-law, was called as a witness and was asked whether Alberta and deceased had cohabited as man and wife, but an objection was sustained to the question, whereupon appellant’s attorney stated that, if permitted to answer, the witness would state that Alberta and deceased had lived together, posing as husband and wife.
The record reflects that the objection to the question was sustained upon the theory that the relationship in.quired about was a collateral matter, which was concluded by the denial of Alberta. We do not concur in that view. The testimony should have been admitted as bearing upon the bias of Alberta in weighing her testimony. In the case of McCain v. State, 129 Ark. 75, 195 S. W. 363, a witness for the State in a homicide case was asked if he had not stated, after the killing, that, if the defendant had not shot the deceased, he (the witness) would have done so. The witness denied making the statement, and another witness was called to prove that he did make the statement, but the trial court declined to admit that testimony. In holding this ruling to be error calling’ for the reversal of the judgment, it was there said: “In defense of the action of the court, the rule is invoked that, where a witness is cross-examined on a matter collateral to the issue, his answer can not subsequently be contradicted by the party asking the question. But this rule is not applicable here, for the bias of a witness is not a collateral matter, and, if the witness gives a false answer to a question which would reveal the bias, the falsity of the answer may be shown by other testimony.” (Citing eases.)
Appellant was asked upon his cross-examination if he had not shot at another colored man named Boss Sheridan. It was not contended that he had been convicted for so doing. Carr v. State, 43 Ark. 99. Inasmuch as this incident occurred more than twenty years before the trial, we think it was too remote to have any probative value, and should have been excluded for that reason. Section 1123 of Chapter on ‘ ‘ Criminal Law, ’ ’ 16 C. J., page 581; Taylor v. State, (Tex.) 179 S. W. 113; Beck v. State, 141 Ark. 111, 216 S. W. 306.
He was also asked if he had not shot at Oliver Han-kins, a white man. He denied that he had shot at Han-kins, but admitted that he and Hankins had a difficulty a few years before the trial, but he was not permitted to offer the explanation that he was only fined for a simple assault, as Hankins admitted at the trial that he (Han-kins) was at fault in that difficulty. Trial courts have a wide discretion in the admission of testimony of this character in determining whether proof of moral delinquencies is or is not too remote to have probative value. We think the admission of the testimony in relation to the difficulty with Hankins was not an abuse of this discretion; but we are also of the opinion that, after permitting the State to prove there had been such a difficulty in the cross-examination of appellant, he should have been permitted to make the explanation which he offered to make.
For the errors indicated the judgment will be reversed, and the cause remanded for a new trial. | [
80,
-24,
-31,
-99,
57,
96,
42,
-72,
112,
-78,
-32,
-45,
-83,
-49,
73,
107,
40,
63,
85,
105,
-60,
-73,
95,
-63,
50,
-5,
123,
-57,
51,
78,
-19,
-35,
12,
98,
74,
81,
102,
8,
-25,
88,
-116,
-123,
-87,
-32,
-118,
82,
96,
111,
4,
15,
113,
-98,
-13,
43,
20,
-31,
73,
40,
91,
-81,
64,
121,
-54,
-123,
-36,
48,
-77,
-89,
-66,
33,
-40,
62,
-103,
49,
0,
-4,
115,
-122,
-126,
116,
109,
-119,
12,
102,
99,
36,
29,
104,
32,
88,
47,
126,
-115,
39,
24,
9,
65,
108,
-108,
-35,
-8,
52,
-85,
114,
-27,
92,
89,
96,
-127,
-33,
-70,
-111,
-51,
56,
-42,
-110,
-29,
-123,
34,
113,
-51,
-22,
92,
69,
121,
-101,
-114,
-14
] |
OPINION OF
THE COURT.
This is an appeal from a decree of the circuit court of Independence county, pronounced in the suit in chancery for a divorce, in which the appellant was plaintiff, and the appellee, defendant. Various reasons have been assigned by the appellant for reversing the decree of the court below. Conceiving, however, that the first point relied upon, is decisive in favor of the appellant, we shall confine our remarks to that point alone. The point is, that the circuit court erred in overruling the demurrer.
The plaintiff below filed his bill, praying for a divorce from bed and board, and the bonds of matrimony. The defendant instead of answering this bill, filed her cross-bill praying a divorce from bed and board, and for alimony. This was clearly irregular. The bill should have been answered, and the allegations therein contained contested before the cross-bill could be properly filed. 1 Har. Ch. 35; 3 Bl. Comm. 444-448. In the case of Lewis v. Lewis, 3 Johns. Ch. 519, the chancellor refused to grant alimony to the wife before she answered, because it did not appear whether she intended to defend herself against the charges in the bill. We feel no difficulty in reversing the decree of the court below. Decree reversed. | [
-80,
124,
-99,
-84,
11,
-96,
-126,
-116,
91,
-95,
39,
-45,
109,
-6,
16,
105,
-30,
75,
81,
105,
85,
-73,
23,
97,
118,
-77,
-48,
-41,
-79,
-49,
-25,
119,
72,
32,
98,
-43,
102,
-54,
-27,
-48,
-122,
14,
-117,
76,
-47,
-54,
116,
47,
66,
11,
53,
-97,
-13,
44,
24,
67,
105,
44,
-37,
49,
-48,
-104,
-114,
21,
95,
6,
-79,
38,
-44,
5,
8,
46,
-104,
57,
2,
-24,
123,
-90,
-122,
84,
75,
-69,
9,
116,
98,
-125,
-27,
-1,
-96,
-88,
6,
124,
-99,
-90,
-112,
89,
42,
64,
-74,
61,
100,
84,
7,
124,
-18,
-113,
95,
100,
24,
-53,
-108,
-79,
-115,
52,
-104,
2,
-18,
-29,
48,
113,
-53,
-32,
92,
-57,
51,
-101,
-35,
-98
] |
DOUG MARTIN, Judge.
1TAppellant Boeuf River Farms, Inc. (BRF) brings this appeal from an order of the Ashley County Circuit Court granting the default-judgment motion filed by ap-pellees Larry Browder and Brian Browder (“Browder”) and a subsequent order granting Browder’s motion to strike BRF’s counterclaim. We find no error and affirm.
Browder filed a complaint against BRF on July 6, 2009, contending that BRF had breached the terms of an agricultural lease between Browder and BRF. The complaint alleged that the lease granted Browder a tenancy to farm property in Ashley County for a term to expire on December 31, 2012, and as rent, Browder was to pay BRF one-fifth of all crops grown on the premises. Browder planted a wheat crop on the land in the fall of 2008, harvested 11,561.7 bushels of wheat the following spring, and delivered the wheat to Terra! Seed, a grain elevator, around June 1, 2009, with instructions that one-fifth of the crop belonged to BRF and the remaining four-fifths belonged to Browder. According to the | ¡¡.complaint, however, BRF notified Terral Seed that it owned all of the wheat. Based on BRF’s representation, Terral Seed refused to split the crop. As a result, Browder alleged that he could not sell or market his eighty percent of the wheat crop and had thus been damaged in an amount of approximately $45,000. The complaint also sought declaratory relief and raised claims of bad faith and tortious interference with business expectations.
The complaint was served on BRF on July 21, 2009, but BRF failed to file a timely answer. Browder filed a motion for default judgment on August 18, 2009. On August 24, 2009, BRF filed an answer to Browder’s complaint as well as a counterclaim. For the most part, the answer generally denied the allegations of the complaint. BRF specifically denied that it notified Terral Seed that BRF owned all of the wheat that Browder had harvested. Rather, BRF affirmatively stated that it informed Terral Seed that it and Browder had a dispute concerning the ownership of the wheat in storage at Terral’s facility, and BRF contended that it was Terral’s decision to withhold payment for the wheat pending resolution of the dispute.
In its counterclaim, BRF argued that Browder was contractually obligated to cultivate the Ashley County farmland during the year 2009 and pay BRF one-fifth of the crops grown there as rent. BRF asserted, however, that Browder informed BRF that the lessees were abandoning the lease but still intended to harvest the wheat. BRF objected to the harvesting of the wheat, but Browder harvested it anyway on a day when the fields were wet, thus damaging the farmland. In addition, BRF alleged that Browder’s failure to operate the farm in a proper manner caused BRF’s bean yields to decrease, damaging BRF in the amount of | o$34,000, and that Browder caused $4200 in damages to the interior of the farmhouse in which Brow-der had been permitted to live under the terms of the lease.
Browder filed a motion to strike BRF’s untimely answer and counterclaim on August 28, 2009. BRF responded by arguing that Browder’s motion for default judgment should be denied because, even though BRF’s answer was admittedly filed late, Browder’s complaint failed to state facts that amounted to a cause of action. Specifically, BRF contended that, apart from the basic facts alleged in Browder’s complaint, the remainder of the allegations — including the contention that BRF breached the lease — were legal conclusions. In addition, BRF noted that a copy of the lease agreement was attached to the complaint, but Browder failed to note the presence of Paragraph 9, which provided as follows:
All agreements, covenants and conditions of this lease made by the Lessee shall be deemed conditions, the breach of which will entitle the Lessor, at their option, to immediately re-enter and take possession of the demised premises, provided that if the Lessor so elects such entry shall terminate all further liability of the Lessee hereunder, and provided that no delay in the exercise of such option shall be deemed a waiver thereof during the same or any subsequent default.
The obligation of Lessee to timely plant, cultivate and harvest agricultural crops so as to utilize the demised premises according to normal farming practices in Ashley County, Arkansas, is specifically recognized as a condition of this lease.
Citing Kohlenberger, Inc. v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974), BRF argued that “when a cause of action has as an element of it meeting a condition precedent, then the plaintiff must specifically allege meeting that condition precedent before |4a cause of action is sufficiently alleged.” BRF contended that Browder’s complaint made no allegation that the “conditions precedent established by Paragraph 9 of the complaint were fulfilled” — that is, because Browder failed to meet the conditions of Paragraph 9 and breached the contract himself, BRF was entitled to take possession of the property, and accordingly, BRF’s statement to Ter-ral that it owned the wheat was actually a true statement and not the cause of the alleged breach of contract.
In addition, BRF argued that its counterclaim was not a compulsory counterclaim and should thus survive any default. On this issue, BRF urged that the transactions or occurrences giving rise to its counterclaim were separate from Browder’s claims for breach of contract and that “nothing about the resolution of the complaint will determine the issues in the counterclaim.” As such, BRF contended that, even if its answer were to be struck and default judgment entered against it on Browder’s breach-of-contract action, the counterclaim should still stand.
The circuit court held a hearing on the motion for default judgment on October 19, 2009. In an order entered on October 22, 2009, the circuit court granted Brow- der’s motion for default judgment. In so doing, the court rejected BRF’s reliance on Kohlenberger, supra, and found that Browder’s complaint sufficiently stated a cause of action.
The court set the matter for a jury trial on the issue of damages; however, the case was continued several times. At some point while discovery was ongoing, the parties realized that they needed “some clarification on the existence of the counterclaim.” At a hearing on April 25, 2011, the parties noted that the circuit court had not yet ruled on Browder’s J^motion to strike BRF’s answer and counterclaim. The court then determined that the motion to strike the answer and counterclaim should be granted so that BRF could take an appeal. An order to that effect was entered on May 12, 2011, granting the motion to strike “for the reasons previously stated in [the court’s] order granting [default] judgment on liability.” BRF filed a timely notice of appeal on June 3, 2011.
I. Default Judgment
In its first argument on appeal, BRF urges that the circuit court should not have entered the default judgment against it. This court reviews a circuit court’s decision not to set aside a default judgment under Rule 55 under an abuse-of-discretion standard. Nucor Corp. v. Kilman, 358 Ark. 107, 117, 186 S.W.3d 720, 726 (2004).
Even though BRF concedes that it did not file a timely answer and acknowledges that, as a result, the factual allegations of the complaint are deemed admitted, BRF nonetheless argues that the admitted allegations must sufficiently allege a cause of action before default can be entered. In support of its argument, BRF relies on Kohlenberger, Inc. v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974), in which the supreme court established that a default judgment should not be entered when the complaint does not sufficiently allege a cause of action.
|fiThe appeal in Kohlenberger involved a default judgment granted to appellee Tyson Foods, Inc., in its suit against Kohlen-berger to recover damages resulting from the alleged failure of an icemaker that Tyson purchased from Kohlenberger. Kohlenberger failed to timely answer Tyson’s complaint, which raised a breach-of-warranty claim. In arguing that the default judgment should be set aside, Koh-lenberger argued that Tyson’s complaint failed to state a cause of action because, “under the allegations of the complaint there was an unrevoked acceptance of the icemaker by Tyson, there having been no allegation of either rejection or revocation of acceptance prior to the filing of the complaint[.]” Kohlenberger, 256 Ark. at 589, 510 S.W.2d at 560. The court then recited the following language on which BRF relies:
Appellant admits that the complaint alleges notification of breach of warranty. Consequently, appellant argues there was no basis for the recovery of special, incidental or consequential damages prayed for in the complaint. This argument brings us to a consideration, first, of the damages recoverable for a breach of warranty and, then, of the right to recovery of special, incidental and consequential damages in the light of the facts alleged and those not alleged. In passing, however, we must say that appellee’s positive, but unsupported, assertion that Kohlenberger’s default bars it from raising these questions is without merit. A default admits only those facts alleged in the complaint and if they are insufficient to support the judgment, it will be reversed. Although it is unnecessary that a complaint set out the evidence relied upon or a history of transactions leading up to the essential facts, it is necessary that substantive or issuable facts be alleged, and conclusions stated cannot be considered on default. The facts constituting the cause of action must be averred by stating them in direct and positive allegations, and not by way of argument, inference or belief. Every fact and element essential to the cause of action must be stated. This means that a complaint must allege every fact which the plaintiff would be required to prove in order to recover. The facts alleged must show the existence of a right in plaintiff, the infringement of that right by defendant and that the cause of action had accrued at the time of the filing of the complaint. A judgment by default must strictly conform to, and be supported by, the allegations of the complaint, and a closer correspondence between the pleading and judgment is required than would be after a contested trial.
Id. at 589-90, 510 S.W.2d at 560 (emphasis added) (internal citations omitted).
In Kohlenberger, a breach-of-warranty action, the court discussed the pertinent provision of the Uniform Commercial Code and noted that notification of a breach of warranty is a condition precedent to recovery which must be pleaded. Id. at 591, 510 S.W.2d at 561. In addition, the court stated that, for a plaintiff to recover more than is allowed for breach of warranty when the goods are accepted, a plaintiff must prove that there was an effective rejection or revocation, and notification is essential before either is effective; thus, the plaintiff must plead notification, prior to the filing of the suit, of either rejection or revocation, as a condition precedent. Id. Tyson’s complaint sought damages including both the purchase price and special and consequential damages; however, the complaint failed to sufficiently allege notice of rejection or revocation. The supreme court therefore held that Tyson was not entitled to a default judgment to recover the purchase price. Id. at 592, 510 S.W.2d at 561-62.
Based on Kohlenberger, BRF argues first that a default judgment is not available unless the facts alleged in the complaint sufficiently state a cause of action. While this is an accurate restatement of the language from Kohlenberger, BRF reaches too far when it urges that Kohlenberger also stands for the proposition that, “when a cause of action has as an element of it meeting a condition precedent, then the plaintiff must specifically allege meeting that condition precedent before a cause of action is sufficiently alleged.” BRF argues that, because Browder failed to mention the “condition precedent” contained in Paragraph 9 of the lease — i.e., that any breach of the lease by the lessee (Browder) gave the lessor (BRF) the | sright to take possession of the property — and failed to mention that Browder did not meet the condition precedent, then the complaint failed to state a cause of action for three reasons: 1) the complaint failed to allege that the conditions precedent were fulfilled; 2) if the conditions precedent were not met, then BRF’s statement that the wheat belonged to it was not a breach of contract, but was instead a true statement; and 3) a material breach, such as a failure to meet a condition precedent, excused BRF’s per formance of the contract. Thus, BRF argues, absent an allegation that the conditions precedent were met, BRF had no obligation under the contract, and because it had no obligation under the contract, it could not have breached the contract.
We conclude, however, that BRF’s reliance on Kohlenberger is misplaced. Koh-lenberger was a case specifically brought as a breach-of-warranty claim under the Uniform Commercial Code, which has special pleading requirements. That is, the plaintiff in that case sought damages which required it to specifically plead or allege that it had either revoked or rejected its purchase from the defendant. See, e.g., Ark.Code Ann. § 4-2-607 (Repl.2001). In L.A. Green Seed Co. v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969), the supreme court similarly held that the statute (which was then Ark. Stat. Ann. § 85-2-607) requires a buyer to give notice of a breach of warranty to the seller within a reasonable time after the buyer discovers or should have discovered the breach, and the giving of notice must be pleaded as a condition precedent to recovery; thus, where the complaint failed to allege notice, the complaint failed to state a cause of action. L.A. Green Seed Co., 246 Ark. at 467, 438 S.W.2d at 719.
l9The instant case, however, is not a breach-of-warranty action brought pursuant to the Uniform Commercial Code; rather, it is a simple breach-of-contract case. BRF has failed to point this court to a case that holds that a non-UCC breach-of-contract complaint requires the pleading of a condition precedent. Instead, in order to state a cause of action for breach of contract, the complaint need only assert the existence of a valid and enforceable contract between the plaintiff and defendant, the obligation of the defendant thereunder, a violation by the defendant, and damages resulting to the plaintiff from the breach. Perry v. Baptist Health, 358 Ark. 238, 244, 189 S.W.3d 54, 58 (2004); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985).
Here, taking all of the allegations in Browder’s complaint as true, as we must in determining whether the complaint states a cause of action, the complaint alleged as follows:
• Browder had an agricultural leasehold interest in the relevant land owned by BRF by which Browder was granted a tenancy to farm the premises in exchange for paying one-fifth of the crops as rent (the existence of a valid and enforceable contract between the plaintiff and defendant);
• as rental for the property, BRF agreed to accept one-fifth of all gross crops produced on the land (the obligation of the defendant under the contract);
• BRF notified the grain elevator that it owned all of the wheat delivered by Browder to the elevator, instead of just its twenty percent, causing the elevator to refuse to split the crop as instructed by Browder (a violation by the defendant); and
• as a result, Browder suffered damages in an amount equal to the value of his share of the wheat delivered to Terral Seed, which was approximately $45,000 (damages resulting to the plaintiff from the breach).
As such, the trial court correctly determined that Browder’s complaint sufficiently alleged a cause of action for breach of contract; correspondingly, because the complaint sufficiently Instated a cause of action, we find no error in the circuit court’s granting of default judgment to Browder.
BRF additionally argues that the circuit court erred in granting a default judgment on Browder’s claim of tortious interference with business expectancy be cause the complaint did not adequately plead that claim either. We are unable to reach the merits of this argument, however, as the circuit court’s order granting the default judgment makes no mention of Browder’s tortious-interference claim. It is well-settled that a party must obtain a ruling from the circuit court on an issue in order to preserve an argument for appeal. Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006). Because the trial court did not rule on the claim, this court has nothing to review. See Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (where there is no ruling by the trial court on an issue, there is nothing for this court to review and determine).
II. Counterclaim
In its second point on appeal, BRF argues that the circuit court erred in striking its counterclaim alongside its answer. Rule 13(a) of the Arkansas Rules of Civil Procedure governs compulsory counterclaims and provides that a pleading
shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
In Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995), the supreme court noted that the purpose behind Arkansas Rule of Civil Procedure 13(a), which governs compulsory counterclaims, is to “require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances.” Estate of Goston, 320 Ark. at 706, 898 S.W.2d at 474 (citing Bankston v. McKenzie, 288 Ark. 65, 702 S.W.2d 14 (1986)). In that case, the plaintiff, Craig, filed a negligence suit against Goston; Goston did not file a timely answer, and Craig obtained a default judgment. Goston subsequently filed suit against Craig based on the same car accident. Craig moved for summary judgment on the basis of res judicata, and the trial court granted the motion. On appeal, the supreme court held that res judicata did not bar Goston’s claim against Craig, but Rule 13(a) did “clearly present a bar to Goston’s claim.” Id. Citing 6 Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice & Procedure, § 1417 (1990), the court noted the following:
However, if notions of estoppel or waiver are used to preclude defendant from asserting his claim in a later suit, should they apply when the first action has resulted in a consent or a default judgment? The Advisory Committee Note to Rule 13(a) only states that an independent suit is barred if the earlier action has “proceeded to a judgment,” without indicating what kind of judgment is contemplated, which has the effect of leaving the question unanswered. Typically, courts have given default judgments full effect and have held that a counterclaim omitted from an action that terminates in a default judgment will be barred from any subsequent suits. [Emphasis added in original.]
Id. Thus, the court concluded that Goston’s failure to present his counterclaim in the original action filed by Craig was the proper basis for the trial court’s ruling that Goston was barred from raising this claim.
liaOn appeal, BRF correctly acknowledges that a subsequent complaint is barred by a previous default judgment when the subsequent complaint would have been a compulsory counterclaim in the first case. BRF asserts, however, that its counterclaim was not compulsory, and thus, it should not have been barred from bringing it despite the default judgment entered in favor of Browder. BRF argues that, even though its counterclaim against Browder arises from the same contract, its causes of action arose out of a different “transaction or occurrence” than the subject of Browder’s claim, and thus, its counterclaim should not have been considered compulsory.
More specifically, BRF argues that Browder’s complaint arose out of its “delivery of wheat to Terral Seed and the comments made by BRF about ... ownership [of the seed],” while its counterclaim, on the other hand, arose out of “Browder’s anticipatory breach and their damage to the property.” These two things, BRF contends, were “wholly separate” such that “nothing about the resolution of the complaint [would] determine the issues in the counterclaim.”
In support of its argument, BRF cites United-Bilt Homes, Inc. v. Sampson, 315 Ark. 156, 864 S.W.2d 861 (1993), and Baltz v. Security Bank of Paragould, 272 Ark. 302, 613 S.W.2d 833 (1981), for the proposition that “one document may be the source of two independent claims, one of which is not necessarily a compulsory counterclaim to be asserted with the other.” BRF urges that, even though Browder’s complaint and BRF’s counterclaim both stemmed from the agricultural lease between them, the causes of action alleged were entirely separate.
| joThose two cases, however, are distinguishable. Sampson, supra, was a second appeal following a supreme court decision in which the court affirmed a judgment against United-Bilt in favor of Sampson. United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992) (Sampson I). Sampson suffered a fire at his home, and his insurance company issued a check jointly to him and to United-Bilt, which was the loss-payee on Sampson’s homeowner’s insurance. Sampson and United-Bilt agreed that the check would be used to pay to repair Sampson’s home, but United-Bilt refused to pay when the repairs were completed. The contractor sued Sampson, who impleaded United-Bilt. Sampson was ultimately awarded damages against United-Bilt, and the supreme court affirmed. Sampson I.
The day after the court’s decision in Sampson I, United-Bilt filed a complaint for foreclosure against Sampson. The trial court dismissed the complaint on Sampson’s motion, finding that the foreclosure action was a compulsory counterclaim which should have been brought in the initial suit. On appeal, the supreme court reversed, holding that the foreclosure action was not a compulsory counterclaim because, even though the relationship of mortgagor and mortgagee existed between United-Bilt and Sampson at the time of the first suit, neither the relationship nor the mortgage was at issue in Sampson I. Thus, the supreme court reversed and remanded for further proceedings on the foreclosure action.
Sampson is distinguishable from the instant case in the sense that the two suits— the original suit involving the contractor and the subsequent foreclosure action— arose out of separate transactions or occurrences: in Sampson I, the transaction was the disbursement of insurance proceeds; in the second case, the transaction or occurrence was the execution of | uthe mortgage and the subsequent default thereon. In the present ease, however, Browder’s complaint was premised on BRF’s statements to Terral Seeds, which Browder contended was in contravention of the lease terms, while BRF’s counterclaim was based on Browder’s anticipatory breach of the same agreement, which purportedly led BRF to make the allegedly offending statements to Terral Seeds. In other words, both complaint and counter claim arose from the same transaction or occurrence.
In Baltz, supra, the Baltzes’ predecessor in interest entered into a farming lease •with B & W Farms. B & W became insolvent about the time the Baltzes bought the farmland and assigned its lease to Security Bank of Paragould. In March 1979, the Baltzes filed suit in Green County Chancery Court to terminate the lease and collect damages from B & W; in February 1980, the Baltzes filed suit in Green County Circuit Court seeking damages for Security Bank’s failure to comply with and perform certain covenants contained in the lease. The chancery court case was tried just before the bank filed its answer in the circuit court case, and the circuit court subsequently dismissed that case because the parties should have joined those issues with the matters being litigated in chancery court. The supreme court cited Rule 18(a), which provides that a party asserting a claim for relief as an original claim may join any other cause of action that he may have against the opposing party. The court reversed, finding that the Baltzes’ circuit-court claim for damages against Security Bank “obviously was not a counterclaim inasmuch as it sought damages from the [bank] as a result of the failure to perform its required duties in accordance with the lease. Since [Rule 13] | ^relates only to counterclaims, it is inapplicable in the present case.” Baltz, 272 Ark. at 305, 613 S.W.2d at 834.
Baltz is thus also distinguishable from the instant case in that it involved two entirely different causes of action, as well as different parties. Moreover, BRF’s only argument based on Baltz is that its “counterclaim regarding anticipatory breach and damage to property is no different from ... the Baltzes’ subsequent chancery suit for damages for breach of the lease.” Without further explication or convincing argument, we are unable to find merit in BRF’s argument.
In sum, the circuit court erred neither in granting Browder’s motion for default judgment nor in striking BRF’s counterclaim, and we affirm.
Affirmed.
HART and GLADWIN, JJ., agree.
. Browder also filed a "provisional” answer to BRF’s counterclaim on September 8, 2009.
. BRF’s appeal is taken pursuant to Ark. R.App. P.—Civ. 2(a)(4), which permits an interlocutory appeal from an order striking an answer or any pleading, even when issues of damages remain pending in a case where a default judgment has been granted. See Arnold & Arnold v. Williams, 315 Ark. 632, 870 S.W.2d 365 (1994) (construing Ark. R.App. P.—Civ. 2(a)(4) to authorize an appeal when an answer has been struck, even if it is not a final judgment). | [
84,
-24,
-71,
12,
8,
96,
48,
-102,
66,
-93,
115,
83,
-17,
-45,
0,
41,
-30,
89,
101,
105,
-61,
-74,
51,
-64,
82,
-5,
-61,
-61,
56,
75,
-92,
-44,
-56,
16,
-126,
87,
-30,
-96,
-27,
88,
-82,
6,
31,
125,
-59,
64,
24,
-85,
18,
75,
37,
-84,
-13,
39,
-71,
75,
73,
46,
-1,
45,
73,
-8,
-72,
15,
79,
23,
-128,
54,
-128,
66,
88,
110,
-112,
121,
9,
-55,
114,
38,
-122,
84,
11,
-99,
-120,
38,
101,
0,
44,
-41,
-88,
-88,
6,
-35,
31,
-90,
-112,
72,
67,
46,
-66,
-100,
82,
22,
102,
124,
105,
-124,
13,
-3,
-125,
-18,
-44,
-93,
-97,
-20,
-100,
23,
-17,
23,
48,
97,
-49,
-26,
93,
7,
49,
-101,
71,
-73
] |
English, C. J.
I-Ierod Snyder was indicted in the circuit court of Franklin county for violating the road law. The indictment charged that, “the said Herod Snyder, on the eleventh day of March, 1882, in the county of Franklin,, etc., being then subject to road duty in road district No., thirty-two, (32), in said count}7, etc., and having had three days actual notice and warning to appear and work on the-public road in said district, unlawfully did fail to pay for the full time he was so lawfully warned to work, and did then and there unlawfully fail to attend by himself or substitute to the acceptance of the overseer of said road district, at the time and place and on the day directed by the said road overseer, against the peace and dignity of' the-state,” etc.
The defendant demurred to the indictment on the ground: that it did not state facts sufficient to constitute a public-offense, etc.
The court sustained the demurrer, discharged defendant,, and the state appealed.
The indictment was drafted under section 5324 of Gantt'sDigest, and in charging the offense substantially follows the language of the statute, which in indictments for mis demeanors is generally sufficient. State v. Witt, 39 Ark., 216.
Counsel for appellee submits that the indictment should have alleged the manner in which he had actual notice and warning to appear and work on the road, but that was matter of evidence to be introduced on trial by the state. The principal fact that appellee had three days actual notice and warning was alleged, and that was sufficient in pleading.
Reversed and remanded, with instructions to the court below to overrule the demurrer to the indictment, and require appellee to plead to it. | [
-80,
-22,
-34,
-36,
-85,
-64,
24,
-102,
-15,
-125,
101,
91,
-17,
-58,
4,
49,
-7,
57,
116,
57,
-60,
-77,
115,
-61,
114,
-77,
47,
71,
50,
73,
-18,
-15,
92,
112,
-54,
-35,
101,
72,
-59,
24,
-116,
0,
-71,
104,
-47,
-64,
48,
55,
118,
15,
49,
-100,
-30,
46,
28,
99,
41,
108,
-23,
-81,
-102,
-14,
-108,
95,
110,
6,
-93,
102,
-103,
3,
-52,
63,
-120,
113,
37,
120,
115,
-74,
-62,
-41,
107,
-103,
8,
34,
98,
3,
53,
-107,
-68,
-71,
14,
-10,
13,
-121,
-71,
81,
-103,
12,
-66,
-107,
125,
86,
6,
122,
-19,
69,
81,
120,
3,
-117,
-80,
-79,
-49,
100,
-98,
67,
-29,
37,
17,
114,
70,
-57,
95,
7,
112,
27,
30,
-95
] |
Eaicin, J.
Seth J. Waddell, in his lifetime, sold lands-by parol contract in Yell county to W. H. Carlock, put him in possession and received some property for part payment.
Afterwards, Seth J. Waddell died, and his administrator, to carry the contract into effect, on the thirteenth of July, 1874, conveyed the lands to Carlock by warranty deed, for the expressed consideration of six hundred dollars, which was recited to have been paid. A part of it,, however, remained due, for which Oarlock on the first day day of March, 1877, executed his note to the administrator, J. N. Waddell, for the sum of $333,20, due at one day. The note recited that it was given for the purchase money of the lands, describing them, and adding: “This-note is to stand as a lien on said land until fully paid. ”
The administrator in August, 1882, and more than five-years after the execution and maturity of the note, brought this suit to enforce an equitable vendor’s lien. The defendant answered, setting up, amongst other things, the statutes of limitations of five years as to the note, and of seven years as to the land. A demurrer to the answer was over— ■ruled, and the complainant resting, his bill was dismissed for want of equity. From this he appeals.
There were other defendant’s holding under Carlock as to 'whom no issue was made.
The note, although it stated the fact that it was a lien, was not thereby made so, to any greater extent, or with :any other legal effect, than it would have been by law. It was not a mortgage, for it conveyed nothing. Nor was it like a title bond, leaving the legal title in the hands of the ■vendor. It simply recited an equitable doctrine, applicable •equally to all notes of like character, given for the purchase money of land. They are all liens, between the parties, for the purchase money, when the lien is not waived, and' the expression of the fact on the face of the note did not give it any greater efficacy.
Although the legal title vested in a mortgage, and that retained by a vendor by title bond, are securities for money, and dissolve away on payment; yet they are something more than the equitable lien raised by a court equity. They, to some extent, give a right in the property itself by virtue of a legal title, which cannot be taken from them, until the yendor fullfils his own obligations. They are legal liens, and may outlive the debt. That is, may be ■enforced after the debt is barred by the statute, but not after it has been satisfied. The possession of the mortgagor, or vendee is consistent with this jus in re of the creditor, and the. bar to its enforcement does not arise until the person in possession has, for the statuary period, asserted a right to the land, adverse to the lien, or done acts from which his intention to claim adversely may be implied. Coldcleugh v. Johnson, Adm’r, et al, 34 Ark., 312. This is upon the idea that he has attached to his legal title, such an interest in the land itself, as may be used to produce the sum of money for which it is bound, although after the bar of the debt he can have no personal decree.
The equitable vendor’s lien is of a different nature. It'. upon no legal or contractual right, and is supported by legal estate. It is the pure creation of courts of equity, having really no substantial existence until the courts are-invoked to declare it, for the purpose of satisfying a debt. They -will not raise it to galvanize a corpse, and revive a debt already declared dead by the policy of the law. True,, it was held by Mr. Chancellor. Bland, upon the idea that the vendor’s lien was a trust in the land, that it was not barred with the debt (1 Bland, pp, 236, 281, 491), but that view has been generally rejected as clearly erroneous,, and the better opinion seems to be that it is not a right of property, but a mere remedy, which cannot be applied-after the debt has been barred. (See cases cited in the American Notes to McReih v Simmons, in Leading Gases-in Equity, vol. 1, p. 496, 4th Ed.). This court has fully adopted the latter view. Linthicum v. Tapscott, 28 Ark., 267.
The answer presented a complete defense and the demurrer to it was properly overruled.
Affirm. | [
-46,
97,
-36,
-97,
-54,
96,
8,
-102,
-7,
58,
65,
87,
-23,
-62,
28,
37,
-25,
75,
113,
104,
-57,
-77,
55,
64,
82,
-77,
-47,
69,
-79,
-51,
71,
-41,
8,
52,
-62,
85,
-26,
-30,
-31,
84,
78,
5,
-117,
108,
-37,
64,
48,
61,
85,
73,
113,
-90,
-13,
42,
53,
106,
105,
42,
107,
9,
-56,
-24,
-69,
-122,
-5,
23,
-111,
71,
-119,
83,
-54,
14,
-112,
53,
9,
-24,
119,
54,
70,
116,
9,
25,
-87,
102,
102,
33,
69,
-17,
-32,
28,
46,
-5,
13,
-124,
-46,
88,
3,
8,
-98,
-97,
-2,
16,
71,
118,
-18,
-115,
21,
110,
2,
-21,
-42,
-125,
61,
-4,
-116,
3,
-26,
-125,
48,
81,
-49,
-74,
92,
35,
121,
27,
-114,
-103
] |
Smith, J.
In July, 1879, Chapman sold and conveyed to Liggett forty acres of land, taking his note for two hundred dollars, part of the purchase money, payable ber 1, 1880. Thé deed reserves no lien, but recites ment of the consideration. Chapman afterwards assigned the note to one Mrs. Lawrence as a collateral security for a debt he owed her; but she, before the paper matured, re-assigned it to him. In the meantime, and while the note was in the hands of Mrs. Lawrence, Liggett, in consideration of five hundred dollars, then paid to him, executed a deed for the same land tó Williams.
This bill sought to subject the land to the payment of the note. But the circuit court confined its relief to giving a personal judgment against Liggett and refused to decree against the land.
A vendor has a lien for the unpaid purchase money upon land conveyed by him, which will be enforced, not only against the vendee and his privies in law and blood, but also against subsequent purchasers with notice of the equity. Pintard v. Goodloe, Hempst. Rep., 503, Swan v. Benson, 31 Ark., 728.
It was alleged in the bill, but denied in the answer, that Williams, at the time of his purchase, knew that Liggett’s purchase note was outstanding. This devolved upon the plaintiff the onus of proving notice. Pearce v. Foreman, 29 Ark., 568; Gerson v. Pool, 31 Ark., 89.
This was done by a fair preponderance of evidence. Williams himself was the only witn.ess who swore he knew nothing about the note until he had puichased and paid for the property. Several witnesses swore to the contrary. And the conduct of Williams is inconsistent with his denial of notice. For, very soon after his purchase, he sent messages to Mrs. Lawrence and afterwards told her in a personal interview that he had now become paymaster of the note.
The decree does not show what impression the evidence 38 to notice left upon the mind of the presiding judge. If came to the conclusion that Williams had no notice, or that the evidence was evenly balanced, we should not hesiitate to reverse his decision. The finding of the chancellor concerning a disputed question of fact, where the evidence is in conflict, is persuasive, but not conclusive on appeal, like the verdict of a jury. There is a difference between appeals in chancery and writs of error or appeals in common law cases. The appeal in chancery, being a rehearing upon the same pleadings and written evidence read in the courts below, necessarily involves to some extent the determination of facts. And the appellate court has the same means and opportunity of reaching a correct conclusion that the chancellor had, and will reverse his decree if against the decided preponderance of evidence. State Bank v. Conway, 13 Ark., 350; Ringgold v. Patterson, 15 Id., 209; Woodruff v. Core, 23 Id., 341.
The argument of Williams’ counsel is that the note, while, 'in the hands of Mrs. Lawrence, was not a lien on the land ; •that it was in her hands when Williams purchased T . the land and that no subsequent re-assignment of the note to the vendor could revive the lien as against Williams or •affect the land in his hands. The fallacy of this consists in .assuming that the note wan not a subsisting lien on the land after its transfer to Mrs. Lawrence as a security for the debt that Chapman owed her. It was as much a lien after the transfer for that purpose as it was before. She held the lien as long as she held the note, for the joint benefitof Chapman and herself. And if she had continued to be the holder of the note when it matured, she might have filed a bill in her own name, making the necessary parties to foreclose the lien. This is precisely what was done in Crawley v. Riggs, 24 Ark., 563, and in Carlton v. Buckner, 28 Id., 66.
As illustrating the effect which assignments of the purchase notes have on the rights of the parties under varying circumstances, compare, Bernays v. Field, 29 Ark., 218; Turner v. Horner, Ib., 440; Pearce v. Foreman, Ib., 563; Rogers v. James, 33 Id., 77.
The decree of the White circuit court, in so far as it renders a judgment against Liggett for the debt, is affirmed ; but so «much of the decree as refused to charge the land •with the payment of the purchase money is reversed and the cause is remanded with directions to enter a decree in •accordance with this opinion and to proceed with its execution. | [
-74,
-3,
-16,
63,
-54,
-32,
42,
-70,
105,
-96,
-78,
91,
109,
80,
16,
37,
-26,
105,
85,
107,
-59,
-93,
15,
65,
-14,
-13,
-39,
-35,
-75,
93,
-26,
-41,
76,
48,
-54,
21,
102,
64,
-59,
-48,
-114,
-115,
11,
100,
-39,
-64,
48,
43,
80,
77,
53,
-122,
-29,
46,
61,
94,
109,
46,
111,
57,
-48,
-8,
-98,
-122,
127,
2,
-77,
37,
-100,
3,
-54,
14,
-112,
49,
1,
-40,
83,
-74,
18,
84,
73,
-71,
8,
98,
102,
32,
69,
-17,
-80,
-100,
111,
-10,
-115,
-90,
-48,
72,
3,
105,
-98,
-99,
117,
16,
38,
118,
-20,
13,
24,
104,
11,
-113,
-106,
-126,
13,
126,
-98,
3,
-13,
31,
49,
65,
-49,
-94,
92,
103,
120,
-101,
-114,
-43
] |
Kirby, J.,
(after stating the facts). There are eighty-three assignments of error in the motion for a new trial, many of which are unimportant, and we only notice such as are insisted upon by appellant.
First, it is insisted that the trial court erred in calling jurors who had been summoned to serve on a previous case after the regular panel had been exhausted, it being claimed that the prospective jurors should have been summoned from the bystanders in accordance with the statute, § 3154, Crawford & Moses’ Digest. An accused person has no right to the services of a particular juror but only to a trial before a fair and impartial jury. The trial court has wide discretion in summoning special veniremen, and the fact that these particular eight jurors had'been summoned before the appellant’s trial began did not constitute error. Pate v. State, 152 Ark. 553, 239 S. W. 27; Sullivan v. State, 163 Ark. 11, 258 S. W. 643.
It is next insisted that the examination of the juror, J. R. Haynes, disclosed that he was incompetent, having-answered the question: “Q. Would the fact that he is charged with this sort of crime have any effect on you? A. It would to some extent.” The record of this juror’s examination on his voir dire showed that he stated several times that he could and would go into the jury box with an open mind.and free from prejudice and try the case solely upon the evidence and the law. The fact that the juror might have been prejudiced against the particular type of crime of which appellant stood charged did not in itself disqualify him. Tong v. State, 169 Ark. 708, 276 S. W. 1004; Cabe v. State, 182 Ark. 49, 30 S. W. (2d) 855.
The assignment that error was committed in admitting portions of depositions of certain witnesses, naming them, taken in Ohio on appellant’s behalf, is without merit. The depositions were introduced by appellant, and the court was not asked at the time to rule upon their admissibility. It is true that at the beginning of the trial appellant asked the court to rule on the admissibility of certain of the depositions after they were introduced, and the court refused to do so at the time. During the course of the trial appellant introduced the depositions in full without asking- for any further ruling and without any being- made. There must, however, be a ruling of the court and an objection before error can be predicated. Howell v. State, 180 Ark. 241, 22 S. W. (2d) 47.
It is next urged that it was error to permit Dr, Hodges to testify concerning the condition of the little boy whose life was saved. The doctor testified that the boy had been poisoned with strychnine about the same time and place as the others, and described the symptoms; and it was competent to show that he had been poisoned at the same time and place as the others as merely a part of one transaction. Banks v. State, 187 Ark. 962, 63 S. W. (2d) 518.
It is urged that the admission of the testimony of Mrs. Elsie Fox constituted error. No objection was made to her direct examination. It developed, however, on cross-examination that her testimony was largely hearsay, and the court, at the request of appellant, instructed, the jury not to consider that part of her testimony which was hearsay. The appellant had brought out part of the incompetent testimony and made no objection to that part elicited by the State. His motion to exclude that part of the testimony was addressed to the discretion of the court, and there was no abuse of discretion in the ruling thereon. Bell v. State, 120 Ark. 530, syllabus 12, 180 S. W. 186.
Neither was it error to allow the witness, Crutch-field, to answer the question asked by the prosecution as to whether or not he had information that appellant was implicated in the theft of certain papers from his office. Crutchfield was the prosecuting attorney of Wayne County, Ohio; and appellant stated in his confession that he was being implicated in that theft; and the State was contending that the implication of appellant in the crime in Ohio was the moving cause or factor in appellant’s trip to Arkansas, and the poisoning of the Colley family. It was only asked for the purpose of affording an explanation as to why an official was following a certain line of investigation and is admissible both as such and as tending to show a motive for the homicide. Turner v. State, 155 Ark. 443, 277 S. W. 727; Sexton v. State, 155 Ark. 441, 244 S. W. 710; March v. State, 183 Ark. 1, 34 S. W. (2d) 767.
Neither was error committed in refusing to allow the witness, Dr. 'Brown, to answer the question giving an explanation that appellant was suffering with such mental disease as rendered him irresponsible. The question was not a proper one to ask an expert witness. Underhill on Criminal Evidence, 3 ed., §§ 267-68. Neither was it necessary that the question asked this witness by the prosecuting attorney on cross-examination contain all the undis putecl facts essential to the issue. Underhill on Criminal Evidence, (3 ed.) § 191.
No error was committed in allowing the witness, Joe Wakelin, to testify relative to a conversation with Dr. Echols, an expert witness, who had detailed his examination of appellant upon which he based an opinion that he was insane. It appears that Dr. Echols had been asked concerning this conversation with Wakelin, and he testified that appellant was insane. Wakelin’s testimony was competent to show that the doctor had made a previous contradictory statement indicating that he thought appellant was sane. Floyd v. State, 181 Ark. 185, 25 S. W. (2d) 766.
No error was committed in overruling appellant’s motion for a continuance on account of the absence of two witnesses whose testimony it was alleged was essential to a proper defense of the cause. The names of the witnesses were not set out in the motion, and it was not indicated how or when their attendance might be procured and they were to he used as nonexpert witnesses concerning appellant’s insanity. Such evidence was merely cumulative to the evidence already offered, conceding that the witnesses would testify as set out in the motion. The motion, however, was not in statutory form, it not being stated therein that appellant believed the testimony of the absent witnesses to be true. Sections 1220 and 3130, Crawford & Moses ’ Digest; Estes v. State, 180 Ark. 656, 22 S. W. (2d) 172; Weaver v. State, 185 Ark. 147, 46 S. W. (2d) 37; Lynch v. State, 188 Ark. 831, 67 S. W. (2d) 1011.
It is urged that the court erred in giving instructions numbered 11, 11% and 12, it being claimed there was no evidence in the record to support same. There is evidence in the record to support these instructions found in appellant’s confession; and they are correct declarations of law. Bell v. State, 120 Ark. 530, at page 555, 180 S. W. 186. Instruction No. 13, objected to, is also a correct declaration of law. Id. page 553. Instruction No. 14, complained of, was not erroneous, the jury having the right to consider appellant’s actions before and after the crime and his appearance at the trial in determining his sanity,- that question being before the jury. Underhill on Criminal Evidence, 3 ed., % 261-62. Appellant’s requested instruction No. 13 was properly refused. Payne v. State; 177 Ark. 413, 6 S. W. (2d) 832; Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997.
Appellant’s requested instruction No. 16, relative to the weight to be given the testimony of the officers testifying, was fully covered by instruction No. 22, given; and the credibility of particular witnesses and the weight to be given their testimony should not be emphasized in separate instructions, any way. Nichols v. State, 182 Ark. 309, 31 S. W. (2d) 527. Both instructions No. 16 and No. 22 should have been refused; and instruction No. 17 was fully covered by instructions No. 12 and No. 20, given, all of which should have been refused for the same reason as assigned for the refusal to give appellant’s requested instruction No. 13 already discussed. Appellant’s requested instruction No. 17B was fully covered by instructions No. 15 and No. 19, given. No error was committed herein under the familiar rule that instructions should be considered as a whole, and that the trial court is not required to repeat instructions.
It is finally insisted that certain remarks of the prosecuting attorney herein constituted error. The prosecuting attorney in his argument said: “He is guilty. I know it, and you know it, and the defendant knows it.” The cases of Hughes v. State, 154 Ark. 621, 243 S. W. 70, and Sanders v. State, 175 Ark. 61, 296 S. W. 70, are cited in support of this contention. These cases are sharply differentiated from the present case, the Hughes case being reversed because of the statement of the prosecuting attorney that he knew that the defendant was guilty because he had information that no one else had; and the Sanders case was reversed for the same reason. No inference of the kind can be drawn from the statement of the prosecuting attorney herein complained of. He also said directly to the jury that he based his opinion upon the evidence introduced in the trial, and told them that they had the same opportunity as he had to reach the conclusion, and, if he had reached the wrong conclusion, they could disregard it. He was not concealing anything from the jury or indicating that he had any knowledge or evidence in the case which was not before them. The expression of an opinion by a prosecuting attorney on the evidence does not constitute a reversible error. McGraw v. State, 184 Ark. 342, 42 S. W. (2d) 373.
Objection was made to the introduction of appellant’s confession on the ground that it was not freely and voluntarily made. No exceptions were saved to the ruling on this question, nor was it made a ground in the motion for a new trial. The question of its admissibility, however, was properly raised in the lower court, and it must be considered here without regard to whether exceptions were saved to its introduction and the ruling thereon. Harding v. State, 94 Ark. 65, 126 S. W. 90. The confession Avas introduced during the examination of Congressman D. D. Glover, who, together with witnesses Wakelin, Rucker and OBuckalew, testified that the confession was made of appellant’s own free will and accord, that it was entirely voluntary and made without any threats, intimidation or hope of reward. There is, in fact, no conflict in the evidence as to whether the statement was voluntarily made, and it Avas properly admitted over appellant’s objection. Allen v. State, 175 Ark. 264, 298 S. W. 993.
The evidence in this case is conclusive that appellant administered poison to the Colley family in Saline County, Arkansas, on the 15th day of August, Í933, which act caused the death, of Alvin Colley, his wife and two of his children. Much testimony was introduced on appellant’s part tending to show his insanity; but evidence was introduced on the part of the State tending to prove his sanity; and the question was settled by the jury upon substantial evidence, and their finding cannot be disturbed on appeal.
There are many other assignments of error which are not considered here, as reversible error could not be predicated upon any of them. The issues appear to have been fully and fairly presented to the court and appellant to have received a fair and impartial trial. We find no reversible errors in the record, and the judgment is affirmed. | [
-80,
-24,
-24,
-65,
-120,
32,
44,
-88,
-111,
-127,
-73,
115,
111,
-38,
20,
35,
-11,
-3,
84,
107,
-60,
-89,
39,
65,
114,
-45,
81,
22,
50,
77,
-10,
-8,
76,
48,
-50,
-43,
-26,
74,
-123,
86,
-122,
10,
9,
97,
-8,
104,
32,
53,
92,
15,
113,
30,
-93,
44,
51,
71,
-17,
40,
79,
63,
66,
-112,
-33,
-51,
107,
4,
-77,
-90,
27,
7,
-6,
36,
40,
61,
3,
-40,
51,
-106,
-126,
-41,
107,
25,
12,
98,
98,
32,
29,
111,
-72,
-79,
62,
126,
29,
-89,
-111,
33,
73,
46,
-74,
-3,
115,
54,
46,
-18,
-19,
84,
89,
116,
3,
-121,
-108,
-77,
-51,
100,
-102,
-53,
-45,
-121,
16,
49,
-52,
-8,
94,
69,
83,
-37,
-114,
-122
] |
Johnson, C. J.
To compensate an alleged injury, appellant brought this suit against appellee in the Garland Circuit Court and alleged: That on December 29,1932, while a passenger upon one of appellee’s street cars, which was being operated in the city of Hot Springs for such purposes, she stepped upon a piece of ice or frozen snow negligently left in the vestibule of said car by appellee which caused her to slip and fall, and thereby she was seriously and permanently injured. In reference to the circumstances under which she was injured, appellant testified:
That on the date named in the complaint she was a passenger upon one of appellee’s street cars which was being operated in the city of Hot Springs for such purposes, and while debarking therefrom she stepped down into the vestibule of said car, and her left foot slipped and “went out from under me like lightning,” and thereby received a very hard fall. She then detailed the extent of her'injuries, but we deem it unnecessary to here set out this testimony. Dr. Evans testified that he assisted in the removal of Mrs. Turner from the street car on the day she was injured, and that he saw a “number of small pieces of snow and ice, thin in form, like it had been kicked off the shoe heel or shoe sole,” lying in the vestibule of the street car.
This, in effect, is all the testimony offered by appellant in reference to the receipt of her injuries and circumstances under which they were received. In passing, it may be said that the testimony tended to show that appellant was seriously and permanently injured by reason of the fall received. The trial court, upon the evidence thus adduced, directed a verdict in favor of appellee, and this appeal is prosecuted seeking reversal.
The trial court was correct in directing a verdict for appellee, because the testimony adduced by appellant was not sufficient to show tliat the injuries received were proximately due to any negligence of appellee. No witness testified that appellant’s fall was proximately due (o the small pieces of snow and ice afterwards seen in the vestibule of the street car. It is true, the jury might have guessed or speculated that her fall was caused by stepping upon the small pieces of ice and packed snow in the vestibule of the street car, but, on the other hand, it was equally as probable that her fall was caused by packed snow or ice which had accumulated on her own shoes. The point is, juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon appellant to show by a preponderance of the evidence that her injuries were caused by some negligent act or omission of appellee. Covington v. Little Fay Oil Co., 178 Ark. 1046, 13 S. W. (2d) 306; Kirkpatrick v. American Railway Express Co., 177 Ark. 334, 6 S. W. (2d) 524; Missouri Pacific Rd. Co. v. Horner, 179 Ark. 321, 15 S. W. (2d) 994; International Harvester Co. v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340; Ft. Smith L. & T. Co. v. Cooper, 170 Ark. 286, 280 S. W. 990; Denton v. Mammoth Springs Electric Light & Power Co., 105 Ark. 161, 150 S. W. 572.
In the recent case of National Life & Accident Ins. Co. v. Hampton, ante p. 377, 72 S. W. (2d) 543, we stated the applicable rule as follows: “It is the well-settled doctrine in this State that a jury’s verdict can not be predicated upon conjecture and speculation,” and continuing we adopted the rule as announced by the Supreme Court. of the United States in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 S. Ct. 275, as follows: “It is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. ’ ’
Moreover, where it conceded that appellant’s fall and consequent injuries were due proximately to her slipping- upon the small pieces of ice and snow seen by Doctor Evans in the vestibule of the street car, this would yet be insufficient to show negligence upon the part of appellee. Before negligence could be inferred, it must have been made to appear from the evidence that appellee permitted this accumulation of ice and snow or that it had been in the vestibule of the car such length of time as to afford an opportunity for removal and a neglect so to do. Riley v. Rhode Island Co., [29 R. I. 143, 69 Atl. 338] 15 L. R. A. (N. S.) 523, and case note.
No error appearing, the judgment is affirmed | [
-47,
104,
-64,
-82,
26,
96,
42,
2,
113,
-125,
-75,
-45,
-85,
69,
12,
33,
-2,
61,
117,
111,
69,
-77,
87,
-85,
-102,
-109,
106,
93,
-77,
74,
116,
-11,
77,
48,
-54,
-59,
102,
75,
-51,
30,
-52,
-127,
-7,
-20,
25,
-126,
48,
120,
5,
15,
113,
-113,
-61,
42,
80,
71,
108,
44,
123,
-91,
-13,
-16,
-127,
5,
-3,
6,
-93,
38,
-98,
-95,
94,
8,
-104,
-75,
32,
-8,
114,
-74,
-46,
116,
107,
-101,
0,
96,
102,
33,
13,
35,
-67,
-72,
47,
-70,
-115,
-90,
64,
9,
91,
9,
-66,
-99,
121,
80,
13,
124,
126,
85,
92,
36,
7,
-54,
-108,
-79,
-25,
-96,
-74,
7,
-17,
-121,
50,
97,
-50,
-30,
92,
68,
51,
-101,
-57,
-70
] |
T. J. Gaughan, Special Chief Justice.
On February 28, 1933, the Bankers’ Trust Company, People’s Trust Company and Union Trust Company, all of Little Rock, Arkansas, being* unable to meet the current lawful demands of their respective depositors, continued business under what is termed a restricted deposit basis. On May 1, 1933, the State Bank Commissioner took charge of each of said banks, and soon thereafter issued charters for three new banks.
A part of the assets of each of the banks was pledged to the Reconstruction Finance Corporation to secure a loan for amounts sufficient to pay the respective depositors fifty per cent, of their deposits. Certain other assets, including the cash from the loan, were transferred to the respective new banks, and shares of stock in the new banks were issued to the old banks. The shares of stock were pledged to the Reconstruction Finance Corporation, with the other assets referred to, but later the stock was released and became assets of the old banks in the hands of the Bank Commissioner. The new banks, under their agreement with the Commissioner, paid to all of the depositors of the three old banks fifty cents on the dollar of their deposit claims.
The principle involved in the determination of this case applies equally to each of the three banks. We shall therefore refer to the proceedings of one and the discussion will be equally applicable to the others.
When the common stock of the new Bankers’ Trust-Company was released by the Reconstruction Finance Corporation to the Bank Commissioner, he offered it to the depositors of the old Bankers ’ Trust Company in exchange for a certain percentage of their deposit claims. Each depositor was requested to accept a like proportionate part. According to the brief filed by plaintiff, a majority of the depositors declined to exchange any part of their deposits for stock, while a number of others accepted stock in exchange for a part of their deposits.
The question now presented by the complaint is whether, in making distribution in the future, in order to prevent a preference, the Bank Commissioner should be required to distribute to the depositors, who did not accept stock, a sum equal to the amount of the exchange value of the stock accepted by the other depositors.
In order to simplify the problem, let us suppose that A and B were depositors in the Bankers’ Trust Company, each in the sum of $1,000. They were paid fifty per cent, of their deposits, so that A and B afterwards held deposit claims each in the sum of $500. Both were requested to exchange a certain per cent, of their claim for a certain number of shares of stock in the new bank. A declined to make the exchange. B accepted the stock, and his deposit is, as a result, reduced to $350. A small distribution has, by the Bank Commissioner, been made to the depositors. In the case of A, his percentage is based on a $500 claim and in the case of B, on a $350 claim. The plaintiff is contending that no distribution should have been made to B until after the distributions to A should amount to $150, and that, until this is done, to allow a dividend or distribution to B on the remainder of his claim of $350 is a preference. Obviously this position assumes that the exchange of stock for deposits, made between B and the Bank Commissioner was not an exchange or sale, bnt was in fact a dividend or distribution. A is not asking that the trade between the Commissioner and B be set aside or rescinded, but that the exchange price of the stock be treated as if it were an advancement in legal tender currency.
The stipulation pertinent to the issue is as follows:
“5. Simultaneously with taking charge .as aforesaid, the Bank Commissioner joined with each of.the respective old banks in the procurement of loans from the Reconstruction Finance Corporation upon the security of certain of the assets of each of the said respective old banks, and in, transferring to the respective new banks, which were organized at that time in succession to the said respective old banks pursuant to act 88 of the Acts of the year 1933, effective March 9, 1933, and to the rules and regulations duly made and approved thereunder, substantially all of the assets of the old banks, at their appraised value, other than those assets .pledged as security for the said loans. Included with the assets so transferred to the respective new banks were the proceeds of the respective loans. The said new banks were organized with shares of capital stock having an aggregate par value, in the instance of the one succeeding the said People’s Trust Company of $200,000, in the instance of the one succeeding the said Bankers’ Trust Company, of $300,000, and in the instance of the one succeeding the said Union Trust Company of $300,000. Each share of the stock of the said new banks had a book value on May 1, 1933, in the instance of the one succeeding the said People’s Trust Company of $31.25, in the instance of the one succeeding the said Bankers’ Trust Company, of $28, and in the instance of the one succeeding the said Union Trust Company of $28.75. Of the stock of the new banks, there was issued to the said respective old banks, or the Bank Commissioner in charge thereof, in part consideration for the assets transferred to the respective new banks, in the ease of the People’s Trust Company, 5,086 shares on the basis of book value, but having- a par value of $25 per share; in the case of the said Bankers’ Trust Company 14,650 shares, on the basis of the book value, but having a par value of $20 per share; and in the case of said Union Trust Company 14,107% shares, on the basis of book value, but having a par value of $20 per share. The said amounts of stock so issued to the said respective old banks were included among the assets thereof which were pledged as security for the said respective loans of the Reconstruction Finance Corporation, and were all of the stock which is or can be involved in the within suit; all the remainder of the capital stock of the said respective new banks having at all times belonged to individuals who, at the issuance thereof, subscribed and paid cash therefor at the said respective book values per share. Each of the said old banks guaranteed its respective successor new bank, to the extent of the book value of the number of shares of stock in the new bank issued to the old bank, against loss within three 3ears of any assets transferred to the new bank. * * *
“7. Immediately upon taking charge of the said respective old banks, the Bank Commissioner, on said May 1, 1933, duly levied assessments against the stockholders of each of the said old banks, for the purpose of paying its respective debts, in amounts of 100 per cent, of the par value of the stock holdings of its respective stockholders, aggregating $350,000 in the instance of said People’s Trust Company, of which $21,800 has been collected to this date, aggregating $600,000 in the instance of said Bankers’ Trust Company, of which $8,400 has been collected to this date, and aggregating $500,000 in •the instance of the Union Trust Company, of which $161,-225.92 has been collected to this date.
“8. Sometime prior to February 1, 1934, the said Reconstruction Finance Corporation released to the said Bank Commissioner all of the shares of stock in the respective new banks which had theretofore been pledged on behalf of the respective old banks as aforesaid, and thereupon the said Bank Commissioner, in charge of the respective said old banks, in pursuance of said act No. 88 and of the rules and regulations duly made and approved thereunder, offered to each and all of the de positors of the respective old banks an opportunity to acquire their proportionate parts of the stock so released through purchase thereof by them respectively, and their payment therefor out of their respective remaining deposits in said old banks, and all of the said stock so released to the said respective old banks was disposed of at said time to such of the said depositors as respectively were willing to acquire the same in the manner aforesaid. The respective depositors who elected to acquire said stock paid therefor out of their said remaining deposits for each share of stock the sum of $31.25 in the instance of stock in the new bank succeeding the said People’s Trust Company, $28 in the instance of stock in the new bank succeeding the said Bankers’ Trust Company, and $28.75 in the. instance of stock in the new bank succeeding the said Union Trust Company, said amounts being in each respective instance the then book value. Country banks organized and existing under the laws of the State of Arkansas were depositors of each of the said old banks, and they respectively acquired and paid for considerable aggregates of the said stock in the manner, and at the respective prices aforesaid; but each of the said country banks was forthwith required by the Bank Commissioner to include the said stock among its respective assets at not more than par, and to agree to dispose of the same within not more than one year. No market for the said shares existed at the time when the Bank Commissioner offered the same to the respective depositors of the said old banks, inasmuch as the public generally were then fearful of acquiring bank stock. At the time of this stipulation, there have been very few sales of the shares of stock of the new banks, and the market value, if any, thereof is uncertain. Since the said sales of stock to .depositors of said old banks each of the said new banks has nationalized. * * *
“12. The offer of the Bank Commissioner to dispose of stock in the respective new banks to the depositors of the respective old banks,-hereinabove referred _t.o, was in each instance made on the same terms to all depositors of the said respective old banks propor tionately, and without partiality or preference to any of them, and the sales of said stock were consummated only by separate arrangements with such of the depositors as respectively consented to acquire the same in the method and at the purchase price, aforesaid. At the time of the said respective- stock sales there was no way of foretelling with definiteness, nor is there now, the amounts which will ultimately be realized from the. assets and assessments against the stockholders of the respective old banks, but the Bank Commissioner and the respective old banks were hopeful, at the. time of said respective stock sales on the basis of appraisals, that each of said old banks had sufficient assets through orderly liquidation thereof, and the collection of stock assessments to pay all of its respective depositors in full. In disposing of said stock in the manner aforesaid, the Bank Commissioner and each of said old banks acted in good faith, and in the belief that the same was to the best interest of all the depositors of each of said old banks.' Since disposing of said stock in the manner aforesaid, the Bank Commissioner has required all State banks having deposits in any of the respective said old banks to charge off the same as having no value as assets.”
“14. The plaintiff was a depositor of each of said old banks at the close of business on said February 27, 1933, and is now, and has not acquired stock from either of said old banks, and he is not chargeable with laches in the bringing of this suit.”
“The facts set forth in the stipulation were all of the facts before the court in the said cause.”
The court below directed that future distributions of dividends be paid to such depositors, as had not heretofore purchased stock of the Bank Commissioner to the exclusion of depositors who purchased stock, until each depositor not purchasing stock was brought to a parity with depositors who had purchased stock.
The plaintiff contends that, notwithstanding paragraph No. 12 of the stipulation, if it appears from the stipulation as a whole that there was, in fact, a prefer-, ence created by the sale of stock in exchange for de deposits, the court should remove the inequality in the manner prayed for in the complaint.
The general doctrine is well settled that preference in distributing trust property is forbidden. Yet our statute authorizes the Bank Commissioner, in liquidating banks, under supervision of the chancery court, to compound debts, sell assets in piecemeal, and exchange property for deposits. It must have been known by the lawmakers that inequalities would result. The Commissioner may act in perfect good faith, and for what he conceives to be the best interest to all concerned, and yet he may sell a doubtful note in exchange for a deposit, and the buyer may, contrary to his own expectations, collect the note in full. On the other hand, the buyer of the note may fail to collect any sum whatever. In each instance a preference resulted. In one instance, against the seller, and in the other, against the buyer. It is not this character of preference that is condemned. In determining whether depositors suffer injury or discrimination on account of sale of assets or exchange for all or part of deposit liability, we must consider the transaction as of the timé the sale or exchange occurred.
Now, applying this rule to the present case, do the facts .justify us in holding that the sale complained of was a preference as between the depositors who retained their deposits, and those who exchanged a part for stock?
After carefully studying the stipulation and taking cognizance of the well-known financial conditions of our country at the time, we have reached the conclusion that at the time the exchange was made, neither the stock nor the deposit liability had a market value, nor could the Bank Commissioner or anyone else foretell, with any reasonable certaint3, the future return from either.
Plaintiff presents two reasons for -his contention that the stock, at the time of the sale, was of more value than the deposits canceled in exchange. The two reasons relied on are: First, the guarantee of the old bank, set out in paragraph No. 5 of the stipulation; and, second, because, since the sale of the stock, the Bank Commissioner has permitted country banks to retain the stock obtained by them among their assets, as set out in stipulation No. 8, and also has required them to charge off any deposit claim held against any of said banks. See stipulation No. 12.
The difficulty in enforcing, in a practical way, the guarantee referred to renders it doubtful whether the guarantee added substantial value to the stock of the new banks.
No explanation of the action of the Bank Commissioner in respect to the so-called country banks is offered, and we are left to conjecture as to what reasons prompted him to this action. The fact is presented in evidence, no doubt as a circumstance to establish the claim of preference. Unexplained and without proof that the action of the Commissioner truly reflected the respective fair market value of the stock and the deposit liability at the time of the exchange, we think the circumstance can have but little, if any, probative force.
It is observed that the country banks must dispose of the stock within one year, and that up to this time, but little has been sold. What loss the country banks will sustain in disposing* of the stock within the year named, and what sums those who retained their deposits may ultimately receive, we cannot, under the stipulation of fact, know with sufficient certainty to enable us to disapprove the action of the Commissioner, admittedly made in good faith, and in what he conceived to be to the best interest of all depositors alike.
We have also carefully considered the question of fact as to whether the transfer of the stock in the new banks to the depositors of the old banks in exchange for their deposit claims, or a part thereof, amounted to a separate sale to each of the depositors or to a dividend or distribution; and have reached the conclusion that each such transaction was in fact a separate sale.
Since the facts do not establish that a preference, ■within the legal meaning of this term, was given by the Commissioner in the exchange of stock for deposits, and since each such transaction was in fact a sale, it only remains for us to determine whether or not the Commissioner was clothed with authority to sell the stock for deposits. We think the authority, subject to the super vision of the chancery court, is fully sustained in the following recent decisions of our court: Dunkin v. Taylor, 185 Ark. 1033, 50 S. W. (2d) 978; Lummus Cotton Gin Co. v. Taylor, 188 Ark. 100, 64 S. W. (2d) 90.
Under the facts presented, we think the acts of the Commissioner should be approved. The decree appealed from is reversed, and the cause remanded with directions to approve the acts of the Commissioner in disposing of the stock of the new banks, and in distributing the funds- of the old banks. It is so ordered. | [
116,
-8,
-24,
108,
26,
0,
62,
-102,
89,
-88,
37,
-45,
-23,
94,
20,
93,
-10,
121,
-44,
97,
-11,
-77,
63,
75,
-38,
-109,
-39,
-59,
-76,
95,
-92,
-41,
76,
48,
-54,
-43,
-26,
-62,
-61,
92,
14,
1,
42,
78,
-35,
65,
48,
103,
114,
11,
81,
-116,
-29,
36,
24,
78,
72,
46,
-53,
57,
80,
-71,
-72,
-60,
109,
5,
33,
36,
-104,
7,
-16,
46,
-40,
53,
9,
-88,
118,
-90,
6,
84,
75,
-101,
13,
34,
102,
1,
100,
-50,
-108,
-96,
54,
-81,
-83,
-90,
-110,
72,
32,
-85,
-66,
-100,
-50,
86,
-122,
-4,
-18,
-123,
85,
108,
5,
-50,
-74,
-93,
13,
109,
-104,
3,
-29,
-125,
48,
116,
-54,
-29,
77,
23,
123,
-109,
-98,
-35
] |
Smith, J.
Appellants were jointly indicted, along with Essie Fulbright, for the murder of W. P. Ford, which crime was alleged to have been committed by striking Ford with a rock and thus killing him.
There was a severance by Essie Fulbright, and upon her trial she was convicted of murder in the second degree, and has duly appealed. Appellants were also convicted and given each a sentence of ten years for murder in the second degree.
It was the theory of the prosecution that these parties had robbed Ford, and that the homicide was committed either in the commission of that crime or as the result of a fight after the robbery resulting from Ford’s attempt to recover the money stolen from him.
The appeal of Essie Fulbright has been disposed of in an opinion handed down this day by the Chief Justice, which reviews the testimony in that ease. The testimony heard at the trial of appellants was not substantially different from that offered in the case of Essie Fulbright, and it will not, therefore, be repeated. Certain other questions which were raised at each of the trials are also disposed of by the opinion in the Fulbright case.
It is very earnestly insisted, for the reversal of the judgment from which this appeal comes, that the testimony does not support the verdict. The insistence is that appellants should have been convicted either of murder in the first degree or of voluntary manslaughter or should have been acquitted.
It is argued that, if Ford was killed in an attempt to rob him, the crime of murder in the first degree was committed, whereas if. he was killed in a subsequent fight which Ford brought on in an attempt to recover the money which he claimed had been stolen from him, the homicide would have been only voluntary manslaughter, and that in no event were appellants guilty of murder in the second degree, the. crime for which they were convicted and sentenced. It is insisted, therefore, that it was error for the court to give an instruction numbered 12, which defined the crime of murder in the second degree. It is not argued that this instruction erroneously defined that crime, but the insistence is that it was error to submit the question of appellants’ guilt of that crime to the jury.
For the reason already stated, the testimony will not be reviewed in this case; but it may be said that the testimony in the instant case is as conflicting as was the testimony in the Fulbright case. According to the testimony offered on appellants’ behalf, they did not kill Ford or participate in his murder, and they should therefore have been acquitted. Will Parish was one of the principal witnesses for the State, and he admitted having made, prior to the trial, statements conflicting with his testimony at the trial. He testified that he was a partisan of Ford’s during the fight, and that after the fatal blow had been struck Ford’s assailants debated what they would do with him. He testified that he was placed on the floor of the car between the seats and that “They were on top of me between the seats, like I was hog tied, ’ ’ and he was carried for some miles from the scene of the encounter, where he was dumped out of the car with the warning that if he told what had happened he would be killed.
There were conflicts in the testimony which it was the peculiar province of the jury to consider and to reconcile if they could be, and, as there was testimony legally sufficient to have supported a conviction of the highest degree of homicide, there was no error prejudicial to appellants in charging upon the lower degrees of that crime. Arnold v. State, 179 Ark. 1066, 20 S. W. (2d) 189, and cases there cited. A general charge upon the law of homicide and the distinctions between the degrees thereof was given, and no insistence is made that the law was not correctly declared in the instructions.
Subsequent to the adjournment of the term at which the trial was had and the sentence pronounced, a motion for a new trial was filed on the ground of newly-discovered evidence. On this motion appears the notation of the trial judge that it was overruled as having been filed out of time, and for the additional reason that it alleged no facts entitling appellants to that relief. We concur in this ruling for both reasons assigned by the trial court. Incorporated Town of Corning v. Thompson, 113 Ark. 237, 168 S. W. 128; Thomas v. State, 136 Ark. 290, 206 S. W. 435; Collatt v. State, 165 Ark. 136, 262 S. W. 990. The testimony set out in this motion is either cumulative of other testimony heard at the trial (Dillard v. State, 174 Ark. 1179, 298 S. W. 27) or tending to impeach such testimony (Hayes v. State, 169 Ark. 883, 277 S. W. 36).
No error appearing, the judgment must be affirmed, and it is so ordered. | [
-16,
-8,
-120,
-115,
42,
96,
42,
-68,
-96,
-61,
-10,
83,
-115,
-53,
68,
121,
45,
127,
85,
107,
-15,
-109,
23,
-63,
-78,
-13,
123,
-43,
-79,
-52,
-1,
-4,
76,
-96,
74,
93,
102,
-104,
-23,
90,
-50,
-128,
-24,
-21,
25,
-126,
52,
123,
100,
15,
97,
-98,
-85,
42,
20,
-51,
45,
40,
107,
47,
96,
-15,
-114,
13,
-33,
22,
-77,
36,
-66,
-115,
-56,
60,
-40,
53,
8,
120,
51,
-106,
-62,
-44,
109,
-119,
-116,
-30,
98,
0,
84,
79,
-79,
-55,
-66,
126,
-99,
-89,
28,
73,
65,
64,
-98,
-35,
63,
84,
39,
112,
-26,
93,
25,
104,
-127,
-53,
-78,
-79,
77,
60,
-42,
-102,
-21,
-128,
48,
113,
-56,
106,
92,
101,
122,
-101,
-121,
-110
] |
Mehaffy, J.
The appellee, Annie E. Little, was the owner of a frame hotel or rooming house located at 201 Prospect Avenue in the city of Hot Springs, Arkansas, and was the owner at the. time the policies hereinafter mentioned were issued, and at the time of the fire. Policies were issued covering said property as follows:
Firemen’s Insurance Company......................................................$1,000
National Fire Insurance Company............................................. 1,000
City of New York Insurance Company................................. 2,000
Georgia Fire Underwriters (two policies)........................ 3,500
North British & Mercantile Insurance Company...... 2,500
The appellee executed her promissory note in the sum of $25,000 payable to appellee, Ed B. Mooney, due nine months after date, and to secure the payment of said note, executed a deed of trust conveying the property on which the insured building was located to Claude E. Marsh, trustee. Mooney borrowed $20,000 from the National Realty Company, and pledged the $25,000 note mentioned as security for the payment of his note. A mortgage clause was attached to each of the policies, providing the loss, if any, should be payable to Ed B. Mooney, mortgagee, as his interests might appear.
Separate suits were filed by appellee, Annie É. Little, against each of the above-named insurance companies, and the National Realty Company and Ed B. Mooney were also made defendants. It was alleged in each complaint that the building was totally destroyed by fire, and appellee prayed judgment for the full amount mentioned in each policy. She. also alleged that the defendants, National Realty Company and Ed B. Mooney, falsely and without right claimed a mortgage lien on the property, and also claimed the debt due under the policies.
The National Realty Company and Ed B. Mooney filed answers and cross-complaints, asking that the causes be transferred to equity, and the mortgage be foreclosed. The appellee, Annie E. Little, filed answer to the cross-complaints, and alleged that the loan made by Ed B. Mooney to her was usurious and void, and prayed that the cross-complaints be dismissed.
The insurance companies answered, admitting that the. policies of fire insurance were in force, but denying that the building was totally destroyed by fire. They admitted the property was damaged by fire, but alleged that the policies provided that the insurance company should not be liable for more than it would cost the insured to repair or replace the same with material of like kind and quality at the time of the loss, and that it would have cost the insured not exceeding $5,000 to make, the repairs. Each of the appellants offered to confess judgment for its proportion of the damage upon the basis of $5,000 total damage. The cases were transferred to equity and consolidated for the purpose of trial. By agreement the consolidated cases were tried as to the liability of the insurance companies, and the question of the liability of appellee, Annie E. Little, under her note and mortgage to Ed B. Mooney, was reserved for determination of the court. The only question before this court is the amount of liability of the insurance companies under their policies.
The chancery court found that there was a total ]oss, and that the value of any salvage was less than the cost of removing same, and entered a decree against each of the insurance companies for the full amount of the policies, together with attorney’s fee of 15- per cent, and a penalty of 12 per cent. The case is here on appeal by the insurance companies. .-C
J. C. Copeman, a witness for the appellee, testified that he was a construction superintendent, and had just completed the Army & Navy Hospital; that he was called upon to make an examination of the property at 201 Prospect Avenue, owned by Mrs. Little, and made a report of his investigation to Mr. Little. Witness testified that, upon a thorough inspection of the property and what there was still remaining of the building, in his opinion there was nothing left that could be used in the reconstruction of any building at all; that, if any one would take the property over now, it would cost them between $400 and $500 to take the debris off in order to get ready to put up a new building on the site; that it was his opinion that the building, as a building, was a total loss. He did not make an estimate to rebuild the building. He made the examination on September 1, 1933. He examined the foundation, and the foundation was bad and crumbly through the heat that had been in the building. He did not believe it could be used; it would have to be torn out if any structure of any kind was built.
Henry P. O’Hagan, a witness for appellee, testified in substance that his profession was supervising engineer for the War Department, and he had been connected with the work in Hot Springs in the construction of the new Army & Navy Hospital, the nurses quarters, known as the annex, and two sets of double NCO quarters. The last two were built by himself without a contractor ; he did the purchasing and hiring. He made an inspection of the property known as 201 Prospect Avenue for Mrs. Little; that the building as it now stands is, in his opinion, of no value; the owner might salvage some firewood, but doubted if any contractor would offer any money for the material now in the building; did not think that any possible salvage would be worth what it would cost to take it down and remove it; believed that the owner would have to pay to have the property cleaned up. In Ms opinion the property is a total loss. He made the examination of the property about September 1,1933.
G. Solberg, a witness for appellee, testified in substance as follows: that his business was general 'superintendent, building supervisor, and he had been, recently engaged in construction work in Hot Springs; that he is supervisor of the new nurses’ quarters, Army & Navy Hospital; that he inspected the property at 201 Prospect Avenue and found, in his estimation, the whole thing a complete loss; there would not be any way to get anything out of the salvage on any of the material. It would not even pay to strip the thing and take it down for the salvage of the material. It is a complete loss in his estimation. He made the examination about four weeks ago.
Captain E. M. George, a witness for appellee, testified in substance that he was captain of the Quartermaster Corps, U. S. Army, and that Solberg is now employed as general superintendent for the H. B. Ryan Company of Chicago, Illinois, and in that capacity is looking after the building of the $160,000 nurses’ quarters, under witness’ supervision. He considers Solberg a competent judge of construction material, and of materials that go into building. H. P. O’Hagan is superintendent of construction and civil engineer, and has been in the employ of the War Department for thirty years under the direct supervision of witness for the last six years. Witness considers him a competent man in his business, and a judge of construction material and buildings. J. C. Copeman is construction superintendent and has been for the past eighteen years. In all witness’ experience he is the best building superintendent witness has ever had. Mr. O’Hagan is employed by the War Department and Mr. Solberg and Mr. Copeman are employed by general contractors. They have to do with government buildings and commercial buildings. Witness is construction quartermaster. He inspected the building at 201 Prospect Avenue and considers the building a total loss and a menace. The inspection was made about a month ago.
O. M. Harrison, a witness for appellant, testified in substance that lie was a building contractor, bad been in that business for eighteen or twenty years, and had built numbers of buildings in Hot Springs, one right across the street on Prospect Avenue, for Captain Rix; made an estimate of the damage to the building at 201 Prospect, August 26,1932. The building was not destroyed by fire, but was damaged. Witness went over the building carefully, and his' estimate of the cost of repairing the building and replacing all the damaged parts at that time was $6,164.40. He was at that time ready and willing to take a contract to make the repairs with the exception of the heating plant. The foundation of the building was not damaged in any way by the fire. His estimate included every part of the building that was damaged in any way, with the exception of the furnace. Several rooms in the building were not damaged by the fire, the canvas and paper still on them. If witness owned the building and wanted to build one like the building was before the fire, he would use the part remaining as a basis for restoring the building.
W. W. Brown, a witness for appellant, testified that he lived in Little Rock and was a building contractor; had been actively engaged in that business for thirty years; made an estimate on the building at 201 Prospect Avenue on November 20, 1932, and estimated that to repair all the damage caused by the fire the cost would be $5,525.87. Witness proposed to make the repairs for that amount. His estimate consisted of removing the debris, hauling it from the premises, a little brick work, topping one flue, sufficient lumber to replace that which was damaged or destroyed, and mill work,. which consists of doors and windows, replacing all that were damaged, a composition roof, repairs to plumbing, and gas fittings. The fire was confined practically to the first and second floors and the roof; no damage to timbers below the first floor; it was necessary to replace a good part of the mill work on the first floor. A part of the outside walls on the left side toward the rear would have to come down from the second and third stories; the studs were- damaged there, and a portion of that wall; the larger part of the building remained intact. If witness desired to replace the building in the condition it was before the fire, he would use that part remaining. Any reasonable man would. There was 65 per cent, of the building with the materials in place that were sound values. Witness had been engaged in building residences and apartments for the better class of residents in Little Rock. Witness made estimates for both insurance companies and insured. The damage by the fire was about 35 per cent. Witness introduced photographs of the building. Witness ’ idea of total loss of a building is when it has lost its identity as a building, and this building has not lost its identity.
George H. Burden and J. D. Johnson testified as to their experiences, and that the building was damaged about 35 per cent. Their testimony was substantially the same as that of Brown.
F. J. W. Hart testified for appellee in rebuttal that he was an architect; had been engaged in that profession about 48 years, and testified as to property that he had built. There was no damage by fire below the first floor. The damage there was caused by water, and caused a settlement of the. piers and old flues and chimneys. In his opinion the flood of the water caused damage to the piers. Three days afterward there was one of the piers kicked out entirely caused by flooding of the water.
The policy of the North British & Mercantile Insurance Company was introduced in evidence, and it was agreed that all of the other policies sued on were the same, with the exception of dates and amounts, and that the concurrent amount of insurance permitted was $10,000. Each of the policies contained the following: “This company shall not be liable beyond the actual cash value of the property at the time any loss or damag’e occurred and the. loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depreciation however caused and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.”
‘‘This company shall not be liable, beyond the actual value destroyed by fire for loss occasioned by ordinance or law regulating construction or repair of building. ’ ’
It is the contention of the appellants that there was no competent evidence tending to support the finding of the chancellor that the building was 'a total loss. We have set out the appellee’s testimony substantially as contained in appellant’s abstract and brief. From this evidence it appears that J. C. Copeman, Henry P. O’Hagan, G. Solberg and Capt. E. M. George, were all men of experience in the construction and value of buildings. Each of them had had considerable experience. Each of them had inspected the property, made a careful examination of it, and testified that the building was a total loss. Some of these witnesses stated that there would not be any way to get anything out of the salvage on any of the material; it would not even pay to strip the thing and take it down for the salvage of the material. Another one testified that after careful inspection of the property he was of the opinion that there was nothing left that could be used in the construction of any building at all. Another one said that he did not think any possible salvage would be worth in value what it would cost to be taken down and removed. These were facts testified to by these witnesses after a careful examination and inspection of the property. There was no effort to show that these witnesses were not skilled.
“A skilled witness is one possessing, in regard to a particular subject or department of human activity, knowledge and experience which are not acquired by ordinary persons. Where he testifies as to facts, he must be shown to have adequate knowledge of the matters of which he' speaks, and where he states an inference he must have the ability, skill, and experience, not only to observe accurately, but to draw the correct conclusion from what he observes. Such a witness may be qualified by professional, scientific, or technical training, or by practical experience in some field of activity conferring on him special knowledge not shared by mankind in general, the rule in this respect being that one who had been engaged for a reasonable time in a particular pro fession, trade, or calling, will be assumed to have the ordinary knowledge common to persons so engaged.” 22 C. J., 519-520; 11 R. C. L., 571, 642.
These witnesses were competent to express the opinion that the building was a total loss. Ringlehaupt v. Young, 55 Ark. 128, 17 S. W. 710 ; Transportation Line v. Hope, 95 U. S. 297; Bedell v. Long Island Rd. Co., 44 N. Y. 367; Fort v. State, 52 Ark. 180, 11 S. W. 959; Miller v. State, 94 Ark. 538, 128 S. W. 353.
The witnesses of appellee had made a personal inspection. They were therefore more competent to testify, and their testimony would be more satisfactory than if they had answered hypothetical questions, or had testified from having heard the facts from other witnesses. There could be no better method of acquiring-knowledge as to the condition of the building as to whether it was a total loss than for competent witnesses to make an examination and inspection of it.
‘‘Whether or not the qualification of a witness with respect to knowledge or special experience is sufficiently established is a matter resting-largely in the discretion of the trial court, whose determination is usually final, and will not be disturbed by an appellate court, except in extreme cases where it is manifest that the trial court has fallen into error or has abused its discretion, and that prejudice to the complaining party has resulted, even though the appellate court might have decided differently if the question had been presented to it in the first instance.” 22 C. J., 526-527.
After the inspection by these witnesses and their testimony was given on direct examination, the appellants had an opportunity to cross-examine them to find out what the extent of their examination was, what portion of the building was left standing, if any, and whether or not it could be used in the construction of another building.
The evidence of the appellee was contradicted by appellant’s witnesses, W. W. Brown, J. D. Johnson, George II. Burden and O. M. Harrison. These were competent witnesses who had examined the building and testified that the building- was not a total loss. One of ap pellee’s witnesses testified that the foundation could not be used; that one pier had already kicked out, and that it was so damaged by water that it could not be used in building another building. Appellants’ witnesses testified that it could be used, although'none of them contradicted the witness about the pier, and none of appellants’ witnesses testified about the damage by water, and so far as the record shows, the damage by water was caused by the fire, that is, in an effort to extinguish the fire. At any rate, there is no evidence of water causing damage in any other way. The witnesses of appellants testified however, that the foundation could be used, and that it was not damaged by fire.
These were all questions of fact, and we have many times held that a chancellor’s finding of fact will not be disturbed on appeal unless clearly against the preponderance of the evidence, and we can not say that the finding of the chancellor is clearly against the preponderance of the evidence in this case.
• Appellants cite and rely on the case of Springfield Fire & Marine Ins. Co. v. Ramey, 245 Ky. 367, 53 S. W. (2d) 562. In this case there is no showing that the witnesses had made any inspection or examination, and neither of the witnesses testified to any facts at all, but each simply stated that in his opinion there was a total loss. The court, however, did not hold that this testimony was incompetent, but the court said: “The appellants succumbed to the inviting temptation, which often presents itself to opposing counsel, to cross-examine the other party’s witnesses, and thus aided in the development of the facts. When the evidence appearing as it is in the record, and thus brought in, it cannot be claimed that no competent evidence was presented authorizing the submission of the issues to the jury.”
The court held that it should have been submitted to the jury. The court also held: “The only evidence offered by the appellee other than that developed by the appellants on cross-examination of her witnesses was mere opinions of the. witnesses, expressed in response to improper questions. It is a wise and salutary rule that a witness must testify to facts within his knowledge and not a mere conclusion, except experts in response to hypothetical questions which must embrace the facts. To this general rule there is another exception which permits the admission of opinion evidence, not conclusions, when, from the very nature of the subject-matter under investigation, no better evidence can be obtained.”
The court held that in cases of the kind before it, that a witness could not be allowed to give his opinion without requiring him to state the facts upon which it is premised. The court then held that the instruction offered by appellant defining “total loss” was erroneous.
In the instant case the best qualification that witnesses could have had was the inspection and examination of the building. The main question in this case is whether there was a total loss, and, as we have said on this question, there was a conflict in the evidence. We said in a recent case: “If a building is destroyed as a building, so that the walls, although remaining, are in such a condition that they will have to be torn down, there is a total loss.” St. Paul F. & M. Ins. Co. v. Green, 181 Ark. 296, 29 S. W. (2d 304; Williams v. Hartford Ins. Co., 54 Cal. 442, 35 Am. Rep. 77; Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. 200; Penn. Fire Ins. Co. v. Drackett, 63 Ohio St. 41, 57 N. E. 962, 81 Am. St. Rep. 608; Teter v. Franklin Fire Ins. Co., 74 W. Va. 344, 82 S. E. 40; German Ins. Co. v. Eddy, 36 Neb. 461, 54 N. W. 856, 19 L. R. A. 707; Seyk v. Miller’s Nat. Ins. Co., 74 Wis. 67, 41 N. W. 772, 3 L. R. A. 523; Lowry v. Fidelity-Phoenix Fire Ins. Co., 210 Mo. App. 121, 272 S. W. 79; Fire Ass’n v. Strayhorn, Tex. Civ. App. 211 S. W. 447; Ins. Co. v. Heckman, 64 Kan. 388, 67 Pac. 879.
Under the authorities above cited, the chancery court was justified in finding that there was a total loss. The trial court held that the ordinance, of the city of Hot Springs was inadmissible, and therefore did not consider it. It is unnecessary to discuss it here because the appellants not only did not complain about it, but urged that the trial court decided it correctly. Whether it was correctly decided or not is immaterial here.
It is finally insisted that the clause of the policy above set out limits the liability of appellants, and that they are not liable for any loss beyond the actual cash value of the property, and in no event shall the recovery exceed what it would then cost the insured to repair or replace the same., etc. It is insisted that the appellees are bound by the contract, and cannot recover anything in excess of what it would cost to repair the building. That is not true in cases where there is a total loss.
Section 6147 of Crawford & Moses’ Digest provides that in case of total loss the insurance company is liable for the full amount stated in the policy. American Central Ins. Co. v. Noe, 75 Ark. 406, 88 S. W. 572; Farmers’ Home Mutual Fire Ass’n v. McAlister, 171 Ark. 574, 285 S. W. 5; Nat. Union Fire Ins. Co. v. Kent, 163 Ark. 7, 259 S. W. 370.
We find no error, and the decree is affirmed. | [
112,
57,
-8,
-20,
-120,
96,
56,
-70,
67,
-55,
-75,
95,
-1,
-31,
29,
45,
-90,
105,
-59,
107,
-106,
-89,
23,
42,
-46,
-69,
113,
-59,
-80,
-35,
-12,
-44,
72,
41,
-54,
29,
-126,
-64,
-59,
28,
6,
-119,
-117,
-28,
29,
74,
48,
-5,
68,
71,
101,
-97,
-45,
40,
16,
75,
109,
44,
-17,
-87,
114,
121,
-118,
5,
123,
7,
33,
118,
-102,
9,
104,
12,
-112,
53,
1,
-84,
115,
-90,
-58,
52,
7,
-117,
4,
38,
99,
34,
-123,
-29,
-84,
13,
47,
22,
-83,
-89,
-78,
9,
51,
73,
-65,
-99,
121,
8,
7,
124,
-92,
81,
93,
100,
5,
-82,
-106,
-93,
9,
-3,
28,
-93,
-25,
19,
38,
117,
-55,
-90,
84,
70,
61,
31,
-118,
-29
] |
Johnson, C. J.
This action was instituted by appellant against appellee in the municipal court of North Little Rock where a judgment was entered in favor of appellee. Upon appeal to the circuit court of Pulaski County, the result was likewise adverse to appellant, and this appeal must result in affirmance.
The suit was predicated upon the following written subscription contract:
“Number 92, May 15,1929, de luxe edition. Arkansas and its people. In four volumes. Please enter my name as a subscriber in the above named publication, issued in three-quarters leather, for which I agree to pay to the order of the American Historical Society, Inc., the sum of sixty-five dollars ($65), upon delivery of same at my residence or place of business. Occupation: Florist. Name: Charles H. Vestal. Residence address: 509 W. 5, No. L. R.”
On October 2, 1931, appellant notified appellee that delivery of the books called for in the subscription contract would be made during October and November, 1931, whereupon appellee advised appellant that he would not accept the books. The books were afterwards delivered but not accepted.
The trial court construed the contract as one to be performed within a reasonable time — same not providing any definite time for performance — and this is the first contention urged for reversal.
We are committed to the doctrine that where time of performance of a contract is not specified in the written instrument the law reads into it, “performance within a reasonable time,” therefore, no error appears from this assignment. Dunn v. Forrester, 181 Ark. 696, 27 S. W. (2d) 1005.
Next it is urged that error was committed in permitting appellee to testify that the sales agent who solicited the subscription contract told him that delivery of the books would be made about October, 1929. Certainly this testimony was at least a circumstance indicating what was considered a reasonable time by the parties for performance of the contract at the time, of its execution. This statement does not alter, vary, contra- diet or otherwise affect the contract, and was admissible and competent for the purpose indicated.
The question as to whether the contract was offered to be performed by appellant within a reasonable time after its execution was submitted to the jury under correct instructions, and the testimony is amply sufficient to sustain the jury’s verdict; therefore the judgment must be affirmed. | [
-76,
-17,
-4,
78,
8,
64,
34,
26,
80,
3,
36,
83,
-23,
-58,
28,
123,
-77,
45,
117,
106,
-60,
-93,
55,
109,
-46,
-109,
81,
-47,
-79,
75,
-12,
94,
76,
48,
-54,
-59,
-25,
-62,
-55,
30,
-114,
-127,
25,
100,
121,
-32,
56,
49,
24,
15,
53,
-66,
-13,
46,
17,
71,
109,
62,
-23,
49,
64,
-31,
-101,
-113,
111,
21,
-111,
52,
-100,
15,
-40,
78,
-120,
53,
2,
-8,
115,
38,
-58,
20,
111,
25,
8,
102,
102,
96,
4,
-61,
-100,
-120,
38,
22,
-115,
-90,
16,
89,
107,
73,
-74,
-99,
124,
20,
7,
126,
122,
-35,
29,
36,
9,
-113,
-16,
-95,
-113,
104,
20,
3,
-21,
99,
16,
112,
-49,
-30,
92,
67,
51,
-101,
-122,
-35
] |
J. Fred Jones, Justice.
This is an appeal by J. B. Wilson from an adverse decree of the Arkansas County Chancery Court, Northern Division, in a case wherein J. B. contended that he is the owner of a one-half undivided interest in certain real property in Arkansas County, the legal title of which was held in the name of his brother, George, who is now deceased.
Until George Wilson’s death, he and J. B. were partners in livestock and farming operations on the land involved in this case. The litigation arose when the widow and heirs of George Wilson filed a petition in chancery for the appointment of a receiver and for an accounting of the partnership assets, consisting primarily of cattle and hogs. They also alleged that J. B. was slandering George’s title to the land, consisting of some 670 acres, by claiming that he owned an interest in the land. J. B. Wilson filed a general denial and alleged rightful possession and control of the partnership assets. He filed a cross-complaint against the widow, Mrs. Kathryn Wilson, as well as against Joan Rodgers, Nancy Tullos, and Kalynn Harris, the three married daughters and surviving heirs of George Wilson, in which he alleged that the lands were partnership assets; that the legal titles to such lands as were held in the name of George Wilson were held in trust for the partnership; that he, J. B. Wilson, owned a one-half undivided equitable interest in the lands and he prayed for a decree to that effect. The chancellor confirmed title to the lands in the estate of George Wilson subject to the rights of dower and to outstanding mortgages and deeds of trust. On appeal to this court J. B. relies on the following points for reversal:
“The findings and decree of the lower court are not supported by the evidence.
It was error to refuse to strike the answer to defendant’s counterclaim, which answer was not timely filed; and refuse to grant counterclaimant a judgment in accordance with the prayers of the counterclaim.
The lower court erred in ruling that the Dead Mans Statute applied and in not permitting appellant to testify about conversations and transactions between him and his deceased brother, because the controversy over the land did not involve the deceased partner’s estate.
It was error to permit appellees’ witnesses to testify about self-serving declarations made by the deceased partner.”
J. B. Wilson alleges a constructive trust in the lands as distinguished from an express trust. He contends that all the property was purchased with partnership funds, and that a constructive, or resulting trust, was created by operation of law. The burden of impressing a constructive trust on the real property in this case rested on the appellant, J. B. Wilson, and he attempted to do so by parol evidence.
Of course, a constructive trust may be proved by parol, but parol evidence for that purpose is received with great caution, and the courts uniformly require the evidence to establish such trusts to be clear and satisfactory. Sometimes it is expressed that the “evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,” and sometimes it is expressed as requiring the evidence to be “full, clear and convincing,” and sometimes expressed as requiring it to be “clearly established.” Crittenden v. Woodruff, 11 Ark. 82; Trapnall v. Brown, 19 Ark. 39; Johnson v. Richardson, 44 Ark. 365; Richardson v. Taylor, 45 Ark. 472; Robinson v. Robinson, 45 Ark. 481; Crow v. Watkins, 48 Ark. 169, 2 S. W. 659; Camden v. Bennett, 64 Ark. 155, 41 S. W. 854; Tillar v. Henry, 75 Ark. 446, 88 S. W. 573; 1 Perry on Trusts, § 137; Broderick & Calvert v. Flannigan, 176 Ark. 1203, 6 S. W. 2d 8; Spencer v. Johnson, 178 Ark. 1200, 13 S. W. 2d 585.
In Tillar v. Henry, supra, we said:
“Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism of the courts has prevented the tenure of realty being based on such shifting sands.”
And again in Nelson v. Wood, 199 Ark. 1019, 137 S. W. 2d 929, we said:
“The general rule, as well as the established rule in this state, seems to be well settled that in order for one to establish by parol either a resulting or constructive trust, the evidence must be ‘full, clear and convincing,’ ‘full, clear and conclusive,’ ‘of so positive a character as to leave no doubt of the fact,’ and ‘of such clearness and certainty of purpose as to leave no well founded doubt upon the subject.’ These requirements run through a long line of cases from this court.”
This same rule was more recently applied in the case of Darsow v. Landreth, 236 Ark. 189, 365 S. W. 2d 136. So, measuring the evidence in the case at bar by the above rules of law, we now consider the evidence in this case.
The real property involved consists of five separate tracts purchased from different individuals. Deeds to three of the tracts are in the record and the deeds to two of the tracts are not in the record. The record consists of five volumes totaling 1,189 pages. Much of the evidence is directed to the admitted partnership assets consisting of personal property, and the evidence directed toward impressing a trust on the real property falls short of being so clear, convincing and satisfactory that we would be justified in overruling the decree of the chancellor, who saw and heard the witnesses as they testified.
The undisputed evidence is clear that George and J. B. Wilson were near the same age, and had held themselves out as business partners all of their adult lives. After their father died intestate when they were quite young, they continued to operate an oil business left to them by their father. When George married, he brought his wife to the family home and J. B. continued to live with George and his wife until he also married. After losing the oil business and their home, through mortgage foreclosure during the depression years, George and J. B. remained closely associated with each other and got into the business of farming and raising livestock under the partnership title “Wilson Brothers,” and this relationship continued until George’s death on July 1, 1967.
All of the deeds of conveyance to the lands here involved were made to George Wilson and to his heirs and assigns forever, and the record is completely void of any competent evidence as to why this was done. It would be next to impossible, and of little value, to analyze the separate testimony of the many witnesses who testified, but the record is clear that most everyone considered the Wilson brothers as a partnership; and most everyone assumed that the partnership included the joint ownership of the land. A number of witnesses called by J. B. testified that George always referred to “us,” “our,” “Jay and I,” and "mine and Jay’s,”, when discussing the farm and its operation. In the sale of some of the land with conveyance to George, the grantors testified that they made the deal with J. B. One of the grantors testified that he dealt with J. B. and sold the land to the Wilson Brothers. The deed, however, was made to George, his heirs and assigns, and there is no evidence as to why this was done. Several witnesses testified as to business they conducted with the Wilson Brothers. Those witnesses called by J. B. testified that they dealt directly with J. B. in such matters as clearing land, sinking a well, arranging to rent land, baling hay, purchasing and selling livestock and feed, and in doing dragline work on the farm. Some of these witnesses testified that when they attempted to do business with George, he would delay final decision until he could talk with J. B.
The witnesses who were called by Mrs. George Wilson and the heirs, testified that they transacted all their business with George and that George did business with them without having to consult with J. B. One or two of these witnesses testified that George referred to the land as belonging to him and had stated that he intended it should go to his wife and children at his death. The overall testimony of all the witnesses leaves the preponderance of the circumstantial evidence fairly even on both sides.
The evidence is clear that George Wilson assessed the real property taxes for a number of years in the name of Wilson Brothers. On the income tax returns the profits from the farm were divided equally between George and J. B. Loans from the Production Credit Association were made to George and J. B. jointly until some individual judgments were obtained against them and the procedure was changed, at the insistence of the association. The amounts of the judgments against George were less than those against J. B., so they borrowed money and paid off the judgments against George and the P. C. A. loans thereafter were made to George or in his name. All of this evidence definitely established a partnership relation between George and J. B. in the operation of the farm as the Wilson Brothers farm or ranch.
In spite of the voluminous record in this case, the record is vague or silent as to the two most important aspects of the case. It is vague as to the bank accounts and it is silent as to why the deeds were made to George, his heirs and assigns. J. B. testified that the bank accounts were joint accounts or Wilson Brothers partnership accounts and that both he and George collected money from the farm operations and deposited all they made into the partnership accounts. He testified that they each drew money from the accounts by check when and as they needed it. J. B.’s primary contention is that the lands were purchased by the Wilson Brothers and paid for out of their joint funds.
Numerous canceled checks were offered in evidence. A number of them dated in the 1950’s were signed “Wilson Brothers by J. B.” Some were signed “Wilson Brothers by George,” some were signed “J. B. 8c George Wilson,” some were signed “George and J. B. Wilson by George,” and some were signed “George and J. B. Wilson by J. B.” Some of the checks were signed “George Wilson by J. B.,” but most of the checks introduced by the appellees were dated in the 1960’s and were simply signed “George Wilson.” None of the checks indicate how the accounts were actually carried at the banks and no bank officer testified as to how the accounts were actually carried or what arrangements were made between the banks and the Wilsons in connection with the accounts. Richard Trice testified that he worked in the First National Bank in Stuttgart back in the ’20’s and had known the Wilsons since 1926. He testified that they did business at the bank as “Wilson Brothers” while he worked there. A number of duplicate bank deposit slips were introduced into evidence by the appellees. They were dated from 1957 through 1967; some of them were made out to George Wilson and some were made out to Nancy Wilson. From the documentary exhibits it is impossible to tell whether the bank accounts were joint, or partnership accounts, or whether they were the individual or personal accounts of George or J. B. with checking authority granted to the other. No bank official testified on this point. J. B. also introduced a few deposit slips made out to him.
Mr. J. B. Wilson testified that after it was agreed that the P. C. A. loan would be made in George Wilson’s name rather than the partnership, the business was carried on as before. In this connection he was asked the following questions and made the following answers:
“Q. What about the bank accounts, still carried as Wilson Brothers? were they
A. No, sir, we carried the bank account in Nancy Tullos’ name.
Q. In what bank?
A. In the First National Bank at DeWitt and finally George put an account up here in this bank, once in the Farmers and Merchants and once in the Peoples, in fact he had an account in Peoples when he passed away.
Q. Did you ever have any in the DeWitt Bank and Trust Company?
A. He could have, yes sir, before that but it was before that time.
Q. Mr. Wilson, did you continue to write checks on that bank account?
A. Yes, sir.
Q. Did you write them yourself and sign them?
A. Yes, sir. I put George Wilson by J. B. Wilson.
Q. And did they go through?
A. Yes, sir.
Q. Now did, was there any other provision made for your cashing checks after that change was made?
A. No, sir, George would just give me a book full of signed checks so anything I needed or that come up I could write one.”
Mr. J. B. Wilson testified that he deposited all monies that he made individually, as well as what he collected from the partnership business, into the partnership account.
“Q. You mean that you deposited to the credit of Wilson Brothers all the money that you made individually?
A. Either to Wilson Brothers or Nancy Wilson’s account or George Wilson’s account at the Peoples National Bank because we carried that account in his name. And I have slips for some of the deposits I made, not every one of them because I didn’t keep every deposit slip.”
In rebuttal J. B. testified that he wrote some checks on the George Wilson account after George’s death, but that the account was not in George Wilson’s name. He testified that the account was in Nancy Wilson’s name and that he had authority to write checks on it. He testified that the money in the account was not any more George’s money than it was his; that one-half of the account belonged to him, and that he deposited money to the account.
“THE COURT: Why was that account in Nancy Wilson’s name?
A. George put it in there back when he lived in DeWitt.
THE COURT: Why?
A. I couldn’t tell you that.
THE COURT: Well you were his partner weren’t you?
A. Yes, sir, he just said let’s carry one account in Nancy’s name and I said all right so we can both write checks on it and it was back when her name was Nancy Wilson, she hadn’t even married.
THE COURT: Was there any judgment against you or George at that time?
A. There was against me and at one time there were some against George but I think there was some judgments that we have paid up but that could have been the reason that he did that. Then is when he started getting the account in this bank too with just George Wilson on it.
■JF 7F
THE COURT: I understood you to testify those checks were George Wilson by you.
A. I signed his name, that’s the way we always signed it, George Wilson by me but it come out of Nancy’s account. We didn’t put Nancy’s name, we put George Wilson by J. B. Wilson, and it come out of her account.
THE COURT: And the bank let you do that?
A. That’s what they did. That’s how they are signed and they come out of Nancy’s account.”
Mrs. Lillian Young, an abstractor, testified that about a year, or two years, before George Wilson died, J. B. Wilson came to her office and asked her to prepare a deed for his brother, George Wilson, and his wife, to sign conveying J. B. a one-half interest in the land held in the name of George Wilson. She testified that a few days later J. B. Wilson asked her if she had prepared the deed and she told him that she had not. On this point Mrs. Young testified as follows:
“A. I called Mr. George Wilson and asked him to come to my office and he did and I told him that his brother had told me to prepare a deed from Mr. George Wilson and his wife to Mr. J. B. Wilson, and he said, ‘No, you don’t prepare that deed.’
Q. Did he say whether or not J. B. Wilson had any interest in the property or whether he was the owner of it or just tell you not to prepare any such deed?
A. He told me not to prepare the deed, that was his property and it was to go to his wife and girls when he was no longer living.”
She testified that she had prepared mortgages and deeds for the Wilson Brothers but that she always looked to George Wilson because that was the one with whom she dealt.
“A. George Wilson paid me. He gave me the money.
Q. You can have these trusts but did Wilson Brothers pay you for drawing the deeds and abstract work?
A. These checks may have been given to me that way but I always looked to George Wilson because that was the one with whom I dealt.”
The probative value of this testimony was diminished to some extent on cross-examination when Mrs. Young testified that she addressed her bills for service in care of J. B. Wilson, and when she identified three checks signed “Wilson Brothers by J. B. W.” and made payable to her for abstract work and taxes. Mrs. Young explained that it was always hard for her to get in touch with Mr. George Wilson as he was always out in the country, but “as to Mr. J. B. Wilson, I could find him most any time around on the streets.”
The appellant J. B. Wilson’s witnesses testified that George had indicated all along that he and J. B. owned the land together as partners. J. B. testified that the land was bought and paid for with partnership funds. The appellees’ witnesses testified that George had indicated all along that the land belonged to him individually. The solemn deeds of record sustain the appellees’ con tention and although there is ample evidence that J. B. was a full partner in the livestock and farming operations, we are left to surmise and conjecture as to why the legal title to the real property rested in George Wilson, his heirs and assigns. George Wilson was in bad health for a considerable period of time before his death, the real property was heavily mortgaged without assistance or objections by J. B. The record only contains circumstantial evidence that perhaps the deeds should have been made to George and J. B. as joint tenants when the property was purchased but this was not done. There is no evidence at all of why the deeds were made to George, his heirs and assigns when the property was purchased, and there is no clear and convincing evidence of why this court should do so now. We find no merit to the appellant’s other assignment or errors, so the decree is affirmed.
Affirmed.
Byrd J., concurs.
Brown and Fogleman, JJ., dissent. | [
48,
110,
-3,
76,
58,
-128,
42,
-86,
-61,
98,
-11,
83,
-65,
-38,
0,
61,
96,
-51,
-43,
107,
-57,
-73,
23,
34,
51,
-45,
-39,
-35,
-80,
77,
-25,
70,
77,
32,
78,
5,
-58,
-88,
-55,
-38,
14,
64,
9,
-4,
-39,
64,
52,
-85,
80,
71,
113,
-65,
-69,
45,
49,
97,
105,
44,
127,
44,
81,
-79,
-118,
5,
94,
22,
17,
100,
-102,
13,
88,
42,
-112,
49,
8,
-24,
115,
-74,
-114,
84,
105,
-71,
40,
118,
103,
18,
-116,
-1,
48,
-104,
14,
-2,
29,
-89,
-46,
120,
74,
32,
-65,
-67,
123,
80,
-106,
-12,
-20,
77,
28,
104,
-123,
-49,
-106,
-79,
-83,
-88,
-104,
19,
-13,
-119,
48,
113,
-51,
-94,
125,
101,
113,
-101,
-114,
-80
] |
Carleton Harris, Chief Justice.
Appellant, Rudy Lee Sutherland, is a licensed insurance agent under the laws of Arkansas, having been licensed in April, 1968. Sutherland, in December, 1969, was convicted in California of a felony, such felony being equivalent to embezzlement in this state. On April 6, 1970, the Insurance Commis sioner of the State of Arkansas conducted a hearing for the purpose of determining whether Sutherland’s license should be cancelled, and after taking evidence, issued an order revoking the license of Sutherland on the basis of Sub-Paragraph (e) of Paragraph 1 of Ark. Stat. Ann. § 66-2835 (Repl. 1966), which gives as one of the grounds for revocation the following: “Conviction, by final judgment, of a felony involving moral turpitude.” Thereupon the commissioner ordered appellant’s license to sell insurance cancelled. In the meantime, Sutherland had appealed the conviction in the California court to the appellate courts, and he appealed the cancellation order to the Pulaski County Circuit Court, asserting that he had not been convicted by a “final judgment” since his case was on appeal; that final conviction would not occur until the highest state appellate court handling this type of case had affirmed the conviction. Thereafter, the Circuit Court, (Second Division) of Pulaski County, not agreeing with this contention, affirmed the order of the commissioner revoking the license of the appellant, and from the judgment so entered, Sutherland brings this Appeal. Three points are argued for reversal, but all relate to whether the judgment of the California trial court was a “final judgment”, the judgement of conviction now pending on appeal.
At the outset, it might be stated that it is argued by appellant, that under California law, Sutherland has not been convicted by final judgment, a point not raised in the trial court, but even had this question been timely raised, there would be no point in discussing the California law, for the matter is controlled by Arkansas law, i. e., the judgment entered by the California trial court, insofar as it relates to the question at hand, is governed by whether the judgment was final under Arkansas law. This is true because of the ancient principle of law that where the enforcement of the foreign law would contravene the established policy of the state of the forum, the law of the forum governs. See Beauchamp v. Bertig. 90 Ark. 351, 119 S. W. 75. See also Leflar, American Conflicts Law (1968) § 109 p. 251. The Arkansas view of the question presented was set forth in 1917 in the case of Huddleston v. Craighead County, 128 Ark. 287, 194 S. W. 17. In 1935 this case was cited and relied upon by this court in its holding in State Medical Board v. Rodgers, 190 Ark. 266, 79 S. W. 2d 83, a case involving the revocation of a medical license. As recently as June 15, 1970, the holdings in Huddleston and Rodgers were reiterated in Tucker v. State, 248 Ark. 979, 455 S. W. 2d 888. Of course, the General Assembly, in enacting legislation, is presumed to be familiar with the holdings of the Arkansas Supreme Court, Lumbermen’s Mut. Cas. Co. v. Moses, 224 Ark. 67, 271 S. W. 2d 780, and accordingly was presumed to be familiar with the cases just cited, when passing the statute, now codified as Section 66-2835.
Before discussing the application of these cases to the instant question, we must first examine the proceedings in California. The record reflects that on December 9, 1969, the jury returned the following verdict:
“IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE The People of the State of California, Plaintiff, vs. RUDY LEE SUTHERLAND, Defendant. No. C-21263 VERDICT We, the Jury in the above entitled action find the Defendant, RUDY LEE SUTHERLAND, Guilty of the crime of Felony, to-wit: Violation of Sections 484-487 of the Penal Code of the State of California (Grand Theft) as charged in the In formation. Roma L. Marx, Foreman Dated: Dec. 9, 1969.”
Thereupon, the court excused the jurors and set for hearing a “Motion for New Trial and Probation and Sentencing set for January 9, 1970 at 1:45 P. M. in Department 13”. On that date, the record reveals the following:
“Defendant having been arraigned for Judgment and it appearing that there is no legal cause why judgment should not be pronounced and the Court having read and considered the probation report, it is the judgment of the Court that imposition of sentence be suspended for three (3) years and that the defendant shall be placed on probation, subject to the following terms and conditions:
(1) serve nine (9) months in the Orange County Jail;
(2) obey all the rules and regulations of the Orange County Sheriff with regard to prisoners;
(3) violate no laws;
(4) obey the usual terms and conditions of probation of the State supervising the probation;
(5) on release from Orange County Jail, defendant shall not leave this State without the approval of his probation officer, who is hereby authorized to arrange and provide out-of-state supervision;
(6) not to engage in any occupation or business without the prior approval of his probation officer;
(7) manage his business or occupation in accordance with the supervision of his probation officer, and in the event defendant is employed as an agent of any principal in any business, defendant shall not accept funds from parties dealing with the principal, unless such funds are in the form of check or money order and made payable to the principal, and then defendant shall transfer such funds immediately to the principal, and further, defendant shall not maintain a trust account of his own for holding such funds, regardless of the nature of his activity, and if he is paid by his principal, the payment to him shall be forwarded by the principal to him and he shall not take his “percentage” or commission out of the funds he obtains from customers or clients.
The Court further decreed that it is the present intent of the Court that this offense may be reduced to a misdemeanor if the defendant leads an exemplary life during the period of the probation. Defendant remanded to the custody of the Orange County Sheriff. Notice of Appeal having been filed, bail pending appeal is set at $5,000.00 plus penalty assessment.”
In State Medical Board v. Rodgers supra, this court squarely passed upon this question. Rodgers entered a plea of guilty to a charge of possessing counterfeit money in the Federal District Court, and on November 10, 1955, was ordered confined in the United States Reformatory for a period of three years. Subsequently however, on March 1, 1954, the court ordered that Rodgers be held on probation for the term and period of five years. In the meantime, the State Medical Board, on January 10, 1954, had entered an order revoking his license to practice medicine in the State of Arkansas, from which order Rodgers appealed. The circuit court rendered judgment vacating and setting aside the order of revocation, and this court affirmed the circuit court, stating:
“In view of the fact that appellee has not been required to suffer the punishment prescribed in the judgment arid sentence abovementioned, the question naturally arises as to whether he has been convicted within the meaning of § 8242, Crawford & Moses’ Digest. It is true that he pleaded guilty to a crime involving moral turpitude, and that he was sentenced to serve three years in the reformatory, but the court before whom that case was tried saw proper to set aside the sentence and put him on probation for a period of five years. On November 21, 1933, the execution of the sentence imposed was suspended until March 1, 1934, and on the latter date it was further suspended for five years; therefore at the time appellant held its meeting and revoked appellee’s license, January 10, 1934, the sentence theretofore imposed had been suspended and something still remained to be done before he could be said to have been convicted within the meaning of the statute. # # # # The judgment rendered is .not a final one. [Our emphasis] Evidently it was in the contemplation of the court that some further order might be entered. * * * * There has been no final judgment entered because the sentence has been suspended, and the appellee has not been required to surrender himself in execution of such judgment. There not being a final judgment of conviction, appellant board was without authority, under this provision of the statute and under the charge made, to revoke his license, and the circuit court correctly quashed said order.”
Very clearly the California court judgment suspended the imposition of the felony sentence for three years and placed appellant on probation. Likewise, as stated in Rodgers, the court contemplated that some further order might be entered for the judgment recites:
“The Court further decreed that it is the present intent of the Court that this offense may be reduced to a misdemeanor if the defendant leads an exemplary life during the period of the probation.”
It is thus apparent that, under Arkansas holdings, Sutherland has not been convicted “by final judgment”.
Of course, this does not necessarily mean that the Commissioner may not revoke Sutherland’s license, for other causes for. revocation of license are listed in Ark. Stat. Ann. (.Repl. 1966) § 66-2835. But it is clear that there can be no revocation based upon the California conviction as it presently stands.
Reversed.
According to the statement of the case, Sutherland is a former Arkansan who had moved to California, and operated an insurance agency for several years; his California license was revoked on April 11, 1968, and the Arkansas license granted within a few days thereafter, the revocation being unknown to the Arkansas Insurance Commissioner.
It would appear from the California statute that appellant’s argument would be erroneous. Pen. C. A. § 1237 provides that an appeal may be taken by a defendant: 1. “From a final judgment of conviction; an order granting probation shall be deemed to be a final judgment within the meaning of this section. . . The cases are not entirely clear as they do not relate to circumstances similar to those in the present judgment.
All of these cases contain the language that an “accused does not become a convict until there has been a judgment and sentence by the court”. Actually, this language was not pertinent in Rodgers and Tucker, and was only copied from Huddleston where it was pertinent, the statute there in question providing that a county would not be liable for costs where the defendant was convicted until execution should have been issued against the property of the “convict”. The court then used the language heretofore quoted.
For instance, it might well be that the facts, upon which the conviction was obtained in California, if presented to the commissioner, would support a revocation under sub-section (d). | [
48,
-20,
-44,
60,
8,
-32,
18,
-80,
91,
-109,
117,
-45,
-83,
-22,
20,
123,
-29,
111,
-28,
123,
-42,
-93,
87,
96,
70,
-13,
-61,
-59,
-79,
93,
124,
-19,
28,
32,
-54,
-43,
102,
73,
-127,
-112,
102,
2,
-103,
-10,
89,
69,
49,
59,
18,
7,
65,
-65,
-29,
47,
21,
75,
45,
44,
-5,
-88,
88,
-103,
-118,
23,
111,
5,
51,
36,
-101,
-89,
-46,
31,
-108,
121,
0,
-8,
115,
38,
-122,
116,
76,
-101,
52,
98,
103,
32,
113,
-17,
-72,
-104,
14,
127,
-115,
-116,
-100,
88,
11,
4,
-106,
-43,
122,
19,
-123,
116,
111,
-43,
29,
40,
5,
-117,
-110,
-95,
107,
-15,
28,
11,
-17,
101,
48,
116,
-49,
-26,
93,
71,
113,
27,
14,
-12
] |
George Rose Smith, Justice.
Shortly after noon on June 24, 1970, Ella Lewis, an 80-year-old resident of Hampton, was brutally attacked by an assailant who used some sort of blunt instrument to inflict two heavy blows upon Mrs. Lewis’s head. The wounds quickly proved fatal. The appellant, charged with first degree murder, was convicted of second degree murder and was sentenced to imprisonment for 21 years. His principal contention for reversal questions the sufficiency of the proof.
The State’s case rested upon circumstantial evidence, but we find it amply sufficient to sustain the verdict. The crime was discovered not long after noon when Mrs. Lewis, sitting on her own front porch, sought help from some passing high school students. The students did what little they could, and obtained medical assistance, but the situation was hopeless. The police investigation indicated that robbery had been the assailant’s motive. There was blood inside the house— especially in the bedroom, where the attack apparently occurred. The decedent’s purse, which she customarily kept pinned inside the front of her dress, had been torn away and stuffed under the mattress, with only 3 or 4 pennies left in it. It was also shown that Mrs. Lewis usually kept her food in a small box, which she wrapped in a bread paper and stored in her freezer.
Boyette, the appellant, is apparently an alcoholic. On the morning of the crime he appeared at a liquor store in Hampton, begged a dollar from the proprietor, who knew him well, and bought a fifth of a gallon of wine with the dollar. Later in the morning Boyette came back and vainly tried to sell the proprietor some frozen food from a small box wrapped in a bread paper. Still later Boyette came back again with 55 cents in change and bought a smaller bottle of wine.
It was shown that during the lifetime of Mrs. Lewis’s husband, Boyette had stayed with the couple at times. The jury were warranted in inferring that Boyette knew where the decedent kept her money and her food. There was also extremely damaging testimony from witnesses who saw Boyette running away from the back part of the victim’s house at about the time the assault must have taken place. Boyette was drunk when he was arrested later that same afternoon.
There was other corroborating proof that we need not narrate. There were also discrepancies, such as dif ferences about exact times of day, of the kind that often emerge when witnesses give their own versions of an exciting or violent occurrence. Such conflicts in the testimony are matters to be considered by the jurors when they weigh the testimony. We find in the record an abundance of substantial evidence to support the verdict, which concludes our inquiry into the sufficiency of the proof.
The appellant also complains about the trial court’s action in allowing the State to show that before Mrs. Lewis went into a coma she stated that it was Boyette who had hit her. That statement is not shown to have been admissible, but the court corrected the error by later admonishing the jury not to consider it for any purpose. The defense was apparently satisfied with the admonition, for there was no renewal of the objection nor any request for a mistrial. In the circumstances, no reversible error appears. Howe v. Freeland, 237 Ark. 705, 375 S. W. 2d 666 (1964); Wiley v. State, 234 Ark. 1006, 356 S. W. 2d 240 (1962).
Affirmed. | [
113,
-2,
-40,
-116,
26,
-96,
42,
120,
-62,
-58,
-77,
119,
-31,
65,
65,
45,
-81,
-25,
85,
105,
-107,
-89,
23,
37,
-14,
-13,
-5,
-43,
-77,
-49,
53,
-43,
14,
48,
-54,
93,
102,
-54,
-7,
-48,
-114,
28,
104,
-13,
48,
82,
40,
43,
-28,
14,
53,
-114,
-89,
14,
-106,
79,
105,
47,
91,
61,
104,
-87,
-118,
5,
-7,
22,
-77,
38,
-107,
3,
-40,
4,
-100,
49,
0,
104,
114,
-76,
-126,
84,
85,
-103,
12,
98,
34,
-124,
73,
79,
-96,
-120,
39,
110,
-76,
7,
28,
104,
65,
110,
-65,
-35,
124,
80,
30,
116,
-9,
86,
77,
32,
93,
-114,
-76,
-77,
-115,
124,
-106,
63,
-53,
53,
100,
113,
-51,
34,
94,
100,
124,
-5,
14,
-74
] |
Lyle Brown, Justice.
The sole question is whether a special circuit judge can be elected pursuant to Ark. Const., art. 7, § 21, for the purpose of selecting jury commissioners and impaneling a grand jury in a situation where the presiding judge is obviously disqualified. When the regular circuit judge of the Pope County Circuit Court, Hon. Russell C. Roberts, was notified that the prosecuting attorney desired the impaneling of a grand jury for the purpose of investigating certain activities of the trial judge, the latter, purporting to act under art. 7, § 21, disqualified himself and called for an election by the attorneys in attendance upon the court. Respondent C. R. George was elected. At the behest of the prosecuting attorney we granted a temporary writ of prohibition suspending C. R. George’s plan to proceed in the special matter for which he was elected. We are now asked to make that writ permanent. The prosecutor contends that art. 7, § 21 does not authorize the procedure of electing a special judge in the instant situation. That provision in our constitution is as follows:
Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meet at 10 o’clock a.m. on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear; and if the judge of said court shall become sick or die or unable to continue to hold such court after its term shall have commenced, or shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practicing attorneys in attendance on said court may in like man ner, on notice from the judge or clerk of said court, elect a judge to preside at such court or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made. The proceeding shall be entered at large upon the record. The special judge shall be learned in law and a resident of the State.
Our analysis of Section 21 leads us to conclude that its purpose is to take care of emergency situations to avoid delay in the trial of pending causes which are about to be reached on the docket or which in fact have been reached. It is first provided that if the regular judge is absent at the commencement of a term, the practicing attorneys in attendance upon the court may on the second day of court elect a special judge to preside until the regular judge appears. Secondly, after the term has begun (which was the situation in this instance) and the regular judge is physically unable to continue court, or if for any reason he is disqualified in any cause then pending, the attorneys may elect a judge “to preside at such court or to try said causes.” We think a sensible interpretation of Section 21 when applied to causes which arise after the commencement of the term is that a special judge may be elected to try only those causes which are pending at the time of the election. We cannot believe that the calling of a grand jury was intended to come under the phraseology “pending causes of action.”
In State v. Stevenson, 89 Ark. 31, 116 S. W. 202 (1909), this court said that Section 21 was “merely provided to keep the circuit courts going by special judges,” and that the exclusive function of those special judges is to “hold sessions of court” and to try those matters pending at the time of their appointment and until they are lawfully succeeded. It is pointed out that there are many duties of the court besides the trying of cases and that Section 21 does not confer any of those numerous functions on a special judge.
We refer again to the phrase "pending causes”— what was pending before the Pope Circuit Court at the time respondent assumed the office of special judge? The regular judge had taken notice of the fact that the prosecuting attorney had filed a petition with the supreme court requesting the assignment of a special judge for the purpose of impaneling a grand jury. A copy of the petition was placed on file by the circuit judge with the circuit clerk of Pope County. Thereupon the regular judge took notice of the filing of the petition and declared himself disqualified. The filing of that petition did not create a “pending cause” as that term is commonly used in legal parlance; it did not create any semblance of an adversary proceeding. It did not create a “case pending in the circuit court” within the universally accepted meaning of the phrase. See Cruson v. Whitley, 19 Ark. 99 (1857).
Our interpretation of Section 21 is reinforced by the language of the section which immediately follows it in the 1874 constitution. After providing for the election of special judges in Section 21, the drafters then provided for the exchange of regular judges in Section 22, which provides:
The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.
That section is worded so that the procedure of exchange of circuits is a permissible but not the exclusive method by which a judge may be selected to preside over a circuit court; it allows the Legislature to regulate the exchange of circuits. Accordingly, the Legislature provided in Ark. Stat. Ann. § 22-142 (Supp. 1969) for the assignment of a judge by the chief justice of our supreme court. Section 22-142 is in harmony with our holding in Knox v. Beirne, 4 Ark. 460 (1842). That case approved an almost identical provision in the Constitution of 1836 relative to judges being sent into other districts. Thus the exchange of circuits upon agreement of the circuit judges or the appointment by the chief justice is open as an alternative method of selecting a judge to preside over the impaneling of a grand jury in Pope County Circuit Court to inquire into the activities of Judge Russell C. Roberts.
Writ granted.
Bryd, J., not participating.
William S. Arnold, Special Justice, joins in the opinion. | [
21,
-20,
-20,
-36,
-86,
32,
30,
-128,
83,
-5,
102,
-46,
-83,
-38,
20,
49,
-85,
-5,
117,
123,
-60,
-74,
23,
66,
34,
-45,
-101,
-57,
-74,
73,
-12,
-3,
8,
56,
74,
85,
70,
101,
-113,
92,
-122,
35,
73,
100,
72,
-112,
40,
101,
82,
31,
85,
30,
-29,
46,
25,
107,
-23,
12,
-39,
45,
-47,
51,
-100,
-105,
109,
20,
51,
36,
10,
-125,
120,
110,
24,
17,
80,
-8,
115,
-78,
-126,
84,
45,
58,
40,
102,
98,
1,
-84,
-81,
-84,
-56,
23,
46,
-99,
-122,
-102,
41,
-21,
10,
-74,
-105,
111,
20,
-118,
-2,
103,
-59,
83,
44,
7,
-50,
-108,
-73,
-58,
61,
-102,
2,
-29,
-61,
112,
113,
-56,
-10,
87,
78,
19,
91,
-121,
4
] |
Frank Holt, Justice.
This controversy arose out of an automobile accident. The appellee R. R. Noble accompanied by his wife, appellee Louise Noble, had stopped their pickup truck at the entrance to an intersection when their vehicle was struck from the rear by an automobile driven by appellant. A jury awarded Louise Noble $15,000 and R. R. Noble $2,000.
Appellant first contends for reversal of the judgment that the evidence is insufficient to support the amount of damages awarded appellees. It is an often stated rule of this court that on appeal the evidence will be viewed most favorably to the appellee to determine whether the jury’s award is so great as to shock the conscience of the court, or demonstrates that the jurors were motivated by passion or prejudice. Gordon v. Smith, 247 Ark. 253, 444 S. W. 2d 873 (1969). Accordingly, we review the evidence.
There was medical evidence that Mrs. Noble has a 10% permanent partial impairment of the cervical spine and of her body as a whole as a result of hyperextension flexion of the cervical spine and that this condition will probably worsen. Appellee has suffered pain since the accident (a year) and the pain will continue for the rest of her life. She is 58 years old with a life expectancy of 17 years.
Mrs. Noble testified to having spent 13 days in the hospital following this accident, during which time she was kept in traction and was never free of pain. After her release, she wore a “collar” every day for four months which afforded partial relief. Becoming dissatisfied with her improvement, she consulted an orthopedic surgeon who prescribed a traction head-halter treatment and, also, pain relieving and muscle relaxant medications. This fraction treatment requires that she sit for 10-minute intervals two to three times a day in a harness which is attached by a rope to an 8- to 10-pound weight suspended from a pulley. This device temporarily breaks the cycle of pain. She testified that this continuous treatment and medication improved her condition; however, she was still unable to move her neck without experiencing pain and was unable to perform the activities she normally engaged in prior to her injury.
Appellees offered evidence showing that Mrs. Noble maintained her home and her yard without assistance prior to the accident and that she spent one-third of her time helping Mr. Noble (who is 70 years of age) in the operation of their farm by driving a tractor, mending fences, and harvesting crops. After the accident she was unable to effectively accomplish her household chores and could not maintain her yard or assist in the farm work. She is no longer able to sew because of partial numbness in her fingers. The evidence shows that appellees were constant companions. Their work, as well as their recreational activities, was carried on as a husband and wife team. Since the accident, Mrs. Noble has been unable to accompany her husband on fishing trips and other recreational activities. As a result, they sold their camper. Appellees have also sold their house trailer because of non-use since she is also unable to travel.
In view of this substantial evidence, we cannot say that the damages awarded appellees were excessive. Blissett v. Frisby, 249 Ark. 235, 458 S. W. 2d 735 (1970); Bailey v. Bradford, 247 Ark. 1048, 449 S. W. 2d 180; Dyer v. Payne, 246 Ark. 92, 436 S. W. 2d 818.
Appellant contends that no evidence was adduced at trial concerning future medical expenses and that the court erred in giving an instruction (AMI 2204) which allowed Mrs. Noble to recover for future medical expenses. Appellees’ medical witness said: “I would assume that she would have continuous symptoms that probably might get worse.” This statement, together with the evidence that appellee had a 10% permanent impairment of the body as a whole and the expenditure of $836.68 for past medical expenses, is sufficient for the jury to consider and calculate future medical expenses. In Belford v. Humphrey, 244 Ark. 211, 424 S. W. 2d 526 (1968) we allowed the jury to infer future medical expenses where the jury had before it a history of past medical expenses that had accrued prior to trial. Therefore, no error was committed by the trial court.
Appellant also complains that error was committed by submitting to the jury the issue of diminished earning capacity in the future (AMI 2207). Appellant asserts there is ‘‘not one iota of testimony” showing Mrs. Noble to have ever been employed or to have earned wages and, therefore, the jury would have to speculate as to her future loss of earning capacity. We find no merit in this contention. The record here clearly shows Mrs. Noble as being a productive member of her household by performing services much greater than those ordinarily rendered by a wife. Her capabilities were not limited to performing only the usual household affairs. Also included were sewing for her relatives “and all,” and assisting her husband one-third of her time in their farm activities. Such capabilities are not devoid of some value. Mrs. Noble’s capacity and ability to work were clearly demonstrated. The jury could reasonably infer a probable diminution in her earning capacity based upon her impaired abilities. Cf. Long v. Henderson, 249 Ark. 567, 459 S. W. 2d 542 (1970) and Blissett v. Frisby, 249 Ark. 235, 458 S. W. 2d 735 (1970). We have long recognized the right of minors to recover for future diminution of earning capacity where no history of wage earning was demonstrated. Missouri Pac. R. Co. v. Maxwell, 194 Ark. 938, 109 S. W. 2d 1254 (1937); St. Louis, I. M. & S. R. Co. v. Waren, 65 Ark. 619, 48 S. W. 222 (1898). A fortiori, certainly such reasoning would apply in the case at bar to an adult who is a productive member of the family.
Affirmed. | [
-15,
-18,
-43,
62,
72,
98,
58,
10,
96,
-125,
-28,
19,
-81,
-39,
85,
43,
-17,
45,
69,
107,
-41,
-77,
23,
-109,
-46,
-77,
123,
-35,
-71,
78,
-28,
-11,
77,
48,
-118,
85,
102,
-117,
-59,
80,
-58,
-108,
9,
105,
89,
-48,
44,
127,
-58,
75,
113,
-97,
-61,
46,
61,
-49,
104,
40,
75,
41,
-64,
-15,
-54,
13,
-49,
2,
-80,
36,
-100,
47,
90,
8,
-40,
49,
0,
-8,
50,
-74,
-125,
84,
107,
-103,
4,
-30,
98,
33,
29,
-3,
-8,
-104,
15,
94,
-81,
-121,
-118,
72,
-85,
41,
-74,
-67,
127,
20,
94,
124,
-6,
93,
92,
124,
75,
-49,
-106,
-79,
-17,
48,
-34,
66,
-29,
-83,
48,
113,
-51,
114,
93,
85,
83,
-69,
-121,
-74
] |
Frank Holt, Justice.
The trial court, sitting as a jury, found appellant guilty of burglary and imposed a two-year sentence in the State Penitentiary. On appeal, the appellant contends for reversal that the evidence is insufficient to establish that a burglary had occurred, or that he had committed the alleged burglary.
In accordance with our well-established rule, we must view the evidence on appeal in the light most favorable to the appellee and sustain the verdict when there is any substantial evidence to support it. Crow v. State, 248 Ark, 1051, 455 S. W. 2d 89; Reynolds v. State, 211 Ark. 383, 200 S. W. 2d 806 (1947); Sanders v. State, 198 Ark. 880, 131 S. W. 2d 936 (1939).
On a Sunday afternoon at approximately 5 p.m., officer Gene Johnston received information on his car radio that Teeter’s car lot had been burglarized by two individuals. It appears that the officer was cruising in this neighborhood. When he observed the appellant and a codefendant seven blocks from this car lot, he stopped them and conducted a “field search” which revealed that both men were in possession of various papers belonging to Teeter’s. Thereupon the officer transported the two suspects to Teeter’s where he was joined by two other police officers. There the Teeter papers, consisting of four separate items, were removed from the possession of both suspects, although Officer Johnston could not say which items were removed from appellant. Officer Johnston testified that he found a window broken out beside the door leading into the office and that a person could reach through the broken window and unlock this door. Officer Yow testified that appellant and his codefendant told him they had taken a set of “master keys”; then both suspects accompanied him to a lot behind a church building near Teeter’s where, according to their directions, he found the keys in the grass. This officer, after being uncertain which suspect pointed out the location of the keys, finally testified there was no doubt in his mind that appellant showed him where the keys were. The State also adduced evidence from the manager of the car lot that on the date of the burglary he responded to a call from the police to come to the place of business and identify some keys and papers. As a witness he identified the four items of papers consisting of a car sales contract between Teeter’s and a customer, related papers, and the customer’s $2,295.00 check payable to Teeter’s. He testified that they came from Teeter’s and that he remembered this particular transaction with this customer since he had to get a new contract and check. He also testified that the “master keys” belonged to the car lot and were used in the operation of the business.
In Johnson v. State, 190 Ark. 979, 82 S. W. 2d 521 (1935), we said:
“* * * The law is that recent possession of stolen property, unexplained, is sufficient to warrant a jury in returning a verdict of guilty against one charged with burglary and larceny where 'a house had been broken into and property stolen.”
In the case at bar, although evidence presented by the State to the effect that a burglary had occurred and that appellant had committed the alleged offense is circumstantial in nature, such evidence presents a question of fact to be determined by a jury. Mathis v. State, 249 Ark. 1088, 464 S. W. 2d 48; Scott v. State, 180 Ark. 408, 21 S. W. 2d 186 (1929).
The appellant denied complicity in the alleged offense. He testified that he was walking home about 9:30 p.m. (not 5 p.m.) when he happened to meet his codefendant and had accepted from him an invitation to walk to his house where car transportation would be available. He admits observing the officers remove the Teeter papers from the person of his codefendant. In questioning the sufficiency of the evidence, appellant also argues that Officers Johnston and Yow were uncertain which of the Teeter papers were removed from him; that Officer Yow equivocated in his testimony that appellant pointed out the location of the keys, even though he later testified there was no doubt in his mind that appellant pointed out to him the location where the keys were found. Also, that one of the papers showed Teeter’s Little Rock address instead of the North Little Rock address where the alleged burglary occurred. Appellant asserts that this vague evidence, together with his denial of complicity and his explanation of being within seven blocks of the alleged burglary with his co-defendant, whom he admits had possession of the Teeter papers, is insufficient to sustain his participation in the alleged burglary. In Crow v. State, supra, we said:
“* * * The weight to be given the conflicting testimony and all reasonable inferences to be drawn therefrom were questions for the jury to determine.”
In the case at bar, when we view the evidence most favorably to the appellee, as we must do, we hold there was substantial evidence from which the trial court, sitting as a jury, could find that a burglary (breaking or entering with unlawful intent to commit larceny) had occurred and that appellant had participated in the alleged offense.
Affirmed.
Byrd, J., dissents. | [
112,
-14,
-11,
62,
42,
96,
42,
-68,
66,
-111,
-14,
83,
-95,
-63,
68,
105,
-29,
-19,
116,
104,
-50,
-73,
39,
114,
-30,
-13,
123,
-60,
-67,
79,
-20,
-36,
26,
112,
-54,
85,
38,
72,
-57,
92,
-118,
-119,
-72,
87,
80,
80,
44,
43,
100,
15,
-11,
-97,
-29,
42,
20,
-62,
73,
44,
75,
-87,
80,
113,
-104,
69,
-35,
22,
-93,
-122,
-71,
5,
16,
44,
-100,
49,
1,
-8,
115,
-92,
-126,
84,
111,
-101,
-124,
98,
98,
2,
-35,
-23,
40,
-127,
6,
58,
-83,
-89,
-104,
64,
67,
101,
-98,
-99,
111,
16,
38,
-4,
-13,
85,
93,
108,
2,
-50,
-108,
-109,
15,
32,
-106,
-8,
-45,
37,
112,
113,
-51,
-30,
92,
87,
83,
-101,
-114,
-112
] |
John A. Fogleman, Justice.
Anniah Bush contends that we should reverse his conviction of murder in the first degree in the perpetration of arson solely on the ground that the state did not prove his guilt beyond a reasonable doubt and to a moral certainty. He is mistaken as to the purpose and scope of appellate review of a criminal judgment. The point asserted here by appellant was resolved by the jury verdict, if it has substantial evidentiary support. Pharr v. State, 246 Ark. 424, 438 S. W. 2d 461. It does. The facts hereinafter recited state the evidence tending to sustain the conviction in the light in which we must view it—that most favorable to the state. Cook v. State, 248 Ark. 332, 451 S. W. 2d 473.
Bush, a male, lived with Perry Lee Holliway, a female, in a 3-room house in Hampton. One of her children, also an occupant of the house, was burned to death when their dwelling was consumed by flames during the early morning hours of February 8, 1970. Bush was tried upon a charge of murdering one Jessie L. Brown, who was sleeping in the house when it burned.
On Saturday night February 7, Anniah (alias Annine and Annias) Bush and his paramour went first to the home of a neighbor, Ruthie Mae Newton, where they drank some beer and whiskey. They left about 9:30 p.m. and went to Jack Harris’ place where they enjoyed drinking more intoxicants of some nature. They were taken to their home somewhere between 10:30 and 11:00 p.m. by the Holliway woman’s stepmother. They immediately went to bed together in the front or center room, had intercourse and went to sleep. Not long thereafter Perry Lee Holliway’s son, Leotis Galbert, a cousin whose name she could not remember, and Jessie Brown came in. Their banter awakened her, but apparently did not disturb appellant. The son and cousin went to bed in a back room. Perry Lee dozed off, but awakened to find Jessie Brown in bed with her and Bu'sh. She then had intercourse with Brown, after which both went to sleep. Bush did not awaken until she bumped him in getting out of bed because of an asthma attack she was suffering.
When Bush saw Brown in the bed, he first asked, “What is that s o b doing in here?” drew an old unloaded pistol from a case under the bed and struck Brown a blow across the head sufficient to cause bleeding. According to the Holliway woman, Brown raised up when struck, then turned over, turned his face to the wall, and said nothing. Bush, she said, threw his weapon to the floor. She heard him say he would bum the s_ o_ b_ down, but never heard Bush say anything to Brown after his question. She then saw Bush get a plastic bottle and sprinkle gasoline about the floor in the room where they had been sleeping. At this time, the two were preparing to go to a neighboring unoccupied house to get water to alleviate the effects of her asthma attack. She went outside the house, from whence she tried to rush Bush. She said that he told her to shut up or he would kill her. She went back into the house to see what was detaining him. He advised that he was having trouble getting his shoes on his swollen feet. Before leaving the first time, she had put a “splinter” of wood from a woodpile in the room into the “tin heater” in the same room to keep the fire in it burning.
After a time, Bush came out, they walked to the vacant house, filled some cans they had brought with water, and had a brief argument, after which, according to her, Bush threw her down and they engaged in intercourse. View of their house from this vacant building was almost completely obstructed by a high hedge. After about 10 minutes, but before consummation of coition, they saw flames at their home and jumped up and ran to the front of the house. The fire was then so widespread and intense that she was unable to remain close to the house even long enough to pull a screen from it in efforts to rescue her son, whose calls for help she heard as soon as she returned to the burning house.
City Marshal Cottrell heard the fire alarm at 4:00 a.m. and went to the scene. While the fire was still blazing high, he asked Bush what had happened. According to the marshal, Bush speculated that old electrical wiring had caught fire, because there had been trouble with a socket in the kitchen. He advised the officer that Jessie Brown, Leotis Galbert and Veotis Cross were in the house. The marshal testified that Bush said that when he left to get a bucket of water, Brown, while sitting on the side of the bed, asked him where he was going. Later, said the officer, Bush told him that Brown was lying on the bed asleep and just rolled over and grunted as Bush and Perry Lee Holliway departed on their mission to obtain water. Cottrell and another officer found a pistol in the ruins within a foot of the bed in the front room. They also found three bodies there. Bush testified that he did not know where the pistol was kept, and that he had thrown it into the yard at some time. Sergeant Peroni testified that Bush had told him the pistol was kept in a box under his bed.
Ruthie May Newton, the neighbor, whom Bush and the Holliway woman had visited recalled being awakened at 4:00 a.m. by Perry Lee Holliway’s screams as the latter approached the burning house, followed by Bush carrying two cans of water. Mrs. Newton’s husband asked appellant whether anyone was in the house, but got no reply until he repeated his in quiry. Bush then said that Streamline (Jessie Brown), "mother’s boy” and another boy were in there. She saw Bush standing in the road in front of her house between his two cans of water, while attempts at rescue of those in the burning building were underway, but did not see him do anything to assist. She saw sparks from the electrical wires at the front of the house after her attention was directed to the fire.
Charles Taylor assisted in rescue efforts. He found the front door of the burning house open when he arrived. He could see the wood stove, but saw no fire in it. The fire was behind the stove in the corner next to the kitchen. The wall between the kitchen and the front room was burning. He saw electric wires flashing at the front of the house. He did not get close enough to smell gasoline. He judged that the fire came from the kitchen, because it was coming across the back of the front room. Doris Jean Galbert, the daughter of Perry Lee Holliway, saw gasoline in a plastic bottle beside the gas stove in the kitchen in her mother’s house on February 7.
Anniah Bush denied any knowledge of the presence of anyone in the house except him and his paramour until she awakened him in getting out of bed because of her asthma attack. He then became aware of the presence of Jessie Brown, but claimed to have said nothing either to him or to the woman with whom he had gone to bed. He also denied having a pistol or striking Brown. He claims not to have been disturbed that another man was in bed with, and had intercourse with, the woman with whom he was living. He said that there was a fire in the stove and pine wood stacked all around the stove when the two of them went to the neighboring house for water. He generally corroborated the Holliway testimony about their activities thereafter except that he claimed to have made an attempt to enter the burning house. He denied setting the fire, making any threats to do so, or having any knowledge of the presence of gasoline inside the house. He admitted that he kept gasoline in a plastic milk jug on a bench outside for the purpose of starting fires in the heater. No one saw appellant ignite the gasoline, nor did any who arrived at the scene after the fire started smell any gasoline.
Arson, like any other crime, may be proved by circumstantial evidence. Carpenter v. State, 204 Ark. 752, 164 S. W. 2d 993. When properly connected, it furnishes a substantial basis for a guilty verdict. Ledford v. State, 234 Ark. 226, 351 S. W. 2d 425. We find that it is sufficiently connected. Appellant’s principal argument is that the evidence is not sufficient because, since no one saw Bush ignite the fire, it is just as plausible to believe that any one of the sleeping occupants left in the house might have lighted it, that a spark from the stove might have started it, or defective wiring might have caused it.. It is true that the burden was on the state to prove that the burning of the building was the result of the wilful act of the accused. Carpenter v. State, supra. It is also true that we will reverse a conviction based upon circumstantial evidence alone, when the jury is left to speculation and conjecture to exclude every reasonable hypothesis other than the guilt of the accused. Jones v. State, 246 Ark. 1057, 441 S. W. 2d 458.
If the jury believed the testimony above set out, there was adequate evidence to show motive, threats, overt acts to carry out the threats, inadequate explanations of suspicious circumstances tending to show guilt, and unlikelihood of other possible causes of the conflagration, which serves to connect the circumstances and exclude any other reasonable hypothesis than the appellant’s guilt. See Carpenter v. State, supra; Ledford v. State, supra.
The judgment is affirmed. | [
16,
-20,
-19,
-66,
41,
68,
10,
-4,
102,
-77,
-25,
-5,
-81,
-55,
77,
109,
-101,
41,
85,
41,
-47,
-93,
23,
-127,
-14,
-69,
81,
-44,
52,
75,
54,
-1,
8,
112,
-54,
89,
38,
-54,
-29,
-36,
-114,
5,
-87,
-32,
-64,
-46,
36,
47,
114,
11,
49,
62,
-29,
42,
16,
-29,
-55,
46,
75,
45,
88,
49,
-120,
7,
-49,
4,
-79,
99,
-98,
7,
-40,
44,
-104,
49,
64,
-20,
-13,
-108,
4,
-12,
77,
-87,
12,
-28,
98,
33,
-83,
-19,
-95,
-119,
47,
46,
-67,
-90,
88,
8,
75,
104,
-73,
-107,
108,
116,
15,
104,
-9,
85,
61,
100,
40,
-49,
-100,
-91,
-55,
44,
-110,
51,
-21,
35,
32,
117,
-51,
-30,
85,
71,
120,
-103,
-116,
-108
] |
J. Fred Jones, Justice.
This is an original action brought in this court by Granite State Insurance Company, as petitioner, seeking a writ of prohibition against the Honorable Russell C. Roberts, Judge of the Conway County Circuit Court, restraining Judge Roberts from proceeding further in connection with a suit now pending in said court wherein Grover L. Martin filed a suit against Granite State Insurance Company for recovery of the maximum amount payable under an uninsured motorist endorsement to an insurance policy issued by Granite State to Martin.
The factual background for Granite State’s petition is as follows: On March 5, 1969, John L. Romes filed suit in the Pulaski County Circuit Court alleging that on March 1, 1969, he sustained personal injuries and property damage in a collision with an automobile operated by Martin in Pulaski County, Arkansas; that Martin’s negligence was the proximate cause of the collision and Romes’ resulting damage. The complaint prayed judgment against Martin in the amount of $35,-000 for personal injuries, together with $500 for property damage.
On March 17, 1969, Martin filed his answer of general denial, and affirmatively alleged that whatever damages Romes sustained were entirely due to Romes’ own negligence in the operation of his automobile. On November 12, 1969, Martin filed an amendment to his answer affirmatively alleging certain acts of negligence on the part of Romes as a complete bar to Romes’ cause of action against him.
On November 24, 1969, Martin, through different attorneys, filed a counterclaim against Romes in the Pulaski County case alleging certain injuries sustained by Martin as a direct and proximate result of specifically alleged acts of negligence on the part of Romes in the operation of Romes’ automobile and as a result of his alleged injuries, Martin prayed judgment against Romes in the amount of $50,000.
On November 26, 1969, Romes filed an amendment to his original complaint more specifically setting out the alleged acts of negligence on the part of Martin; and setting out that the plaintiff Romes’ “collision” insurance carrier, had paid his property damage loss with the exception of $50 deductible under the policy, and the amendment prayed judgment for $55,050 rather than $55,500 as originally prayed.
At a jury trial of the issues as thus joined in the Pulaski County Circuit Court, the jury was unable to agree on a verdict as to Romes’ complaint against Martin, but did render a partial verdict, finding for the plaintiff Romes on Martin’s counterclaim against him. On January 16, 1970, judgment was entered on the verdict adjudging that Martin take nothing by reason of his counterclaim against Romes. The counterclaim was dismissed with prejudice and Romes was awarded his costs in connection with Martin’s counterclaim. A mistrial was declared on Romes’ complaint against Martin, and the matter was ordered placed on trial docket for retrial of those issues.
On appeal to this court from an order denying Martin’s motion in arrest of judgment, we held that the trial court erred in entering judgment on the partial verdict and we reversed, holding that all the issues between the parties must be disposed of in a single action. Martin v. Romes, 249 Ark. 927, 462 S. W. 2d 460, (February 1, 1971).
On August 26, 1970, Martin, through the same attorneys who represented him on his counterclaim in the Pulaski County Circuit Court, filed a complaint in the Circuit Court of Conway County against the Granite State Insurance Company alleging that the defendant insurance company had issued an insurance policy to Martin; that Martin was involved in a collision in Pulaski County wherein his vehicle was struck from the rear by an automobile driven by John L. Romes; that Romes and his automobile were uninsured within the meaning of the language contained in Martin’s insurance policy. A-copy of the policy was made an ex hibit to the complaint and the complaint alleges that Martin sustained personal injuries to his damage in the amount of $50,000, and that the defendant, Granite State Insurance Company, is indebted to the plaintiff Martin in the aggregate sum of $10,000 under his policy of insurance. Martin prayed judgment against Granite State for $10,000, together with penalty and attorneys’ fees.
On September 15, 1970, Granite State, through the same attorneys who filed answer for Martin in the Pulaski County case, filed a motion in the Conway Circuit Court praying a dismissal of the complaint filed 'against it by Martin in that county, for the reason that the same issues were still pending between the same parties in the Circuit Court of Pulaski County, and the Conway County Circuit Court was without jurisdiction. The trial court denied the motion and as a basis for its motion in this court for prohibition, the petitioner states:
“For all practical and legal intents and purposes the matter now pending in the circuit court of Pulaski County involves the same subject matter, the same issues, and the same parties (privies) as that sought to be litigated in Conway Circuit Court and the Pulaski Circuit Court having first acquired jurisdiction, there is no jurisdiction in Conway County.”
The insuring agreement under the uninsured motorist endorsement on the policy issued by Granite State to Martin provides as follows:
“Damages for Bodily Injury Caused by Uninsured Automobiles: The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by the insured, caused by accident and arising out of the ownership, main tenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”
Granite State filed its petition now before us, through the attorneys who filed the answer for Martin in the Pulaski County Circuit Court. The attorneys who represented Martin on his counterclaim in Pulaski County, and who filed the suit now pending against Granite State in Conway County, have filed a brief in support of the action taken by the respondent, Russell C. Roberts, Judge. It is obvious that Granite State carried the liability insurance with the uninsured motorist endorsement on Martin’s automobile. It is entirely possible that Granite State employed counsel only to defend the action brought by Romes against its insured in Pulaski County, and that Martin employed separate counsel to represent him in his counterclaim in that action; but, be that as it may, the record now before us is completely silent as to Granite State’s interest in the Pulaski County case (Martin v. Romes, supra).
Assuming that Granite State is correct in its contention that “for all practical and legal intents and purposes the matter now pending in the circuit court of Pulaski County involves the same subject matter, the same issues, and the same parties (privies) as that sought to be litigated in Conway Circuit Court. . this contention is made in the face of the provision in the policy providing that:
“no judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.” (Emphasis added).
There is no evidence in the record before us that Granite State’s insured, Grover L. Martin, ever obtained any kind of consent from Granite State before prosecuting his counterclaim against Romes in the Pulaski County Circuit Court. By the plain words of the insurance contract, the issues as to liability or any judgment Martin might obtain against Romes in the Pulaski County Circuit Court action, would not be conclusive as between Granite State and its insured Martin, unless the judgment should be entered pursuant to an action prosecuted by the insured with the written consent of the company.
There is no evidence in the record before us that Granite State was ever a party to the litigation pending in Pulaski County, and there is no evidence, as the record now stands, that Granite State did or did not consent to the action instituted or the judgment rendered in the Pulaski County Circuit Court. We conclude, therefore, that the petitioner, Granite State Insurance Company, has failed in the discharge of its burden of showing grounds for the invocation of the extraordinary powers of this «court to prevent by prohibition the exercise of jurisdiction inherent in the trial court, and of showing that the respondent judge erred in denying Granite State’s motion to dismiss Martin’s complaint in the Conway County Circuit Court. MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S. W. 2d 252.
The petition for writ of prohibition is denied. | [
-76,
108,
-16,
28,
10,
96,
58,
26,
90,
49,
101,
83,
-5,
75,
68,
37,
-5,
77,
116,
107,
-11,
-74,
87,
34,
82,
-69,
-31,
-59,
-75,
93,
-27,
-12,
77,
48,
-54,
93,
-122,
-56,
-59,
-100,
-50,
0,
25,
-4,
89,
90,
48,
106,
80,
11,
53,
-82,
-30,
46,
19,
75,
13,
44,
91,
41,
-23,
-24,
-110,
69,
101,
17,
49,
4,
-104,
1,
80,
26,
-112,
-111,
40,
-8,
115,
-90,
-58,
-108,
99,
-103,
9,
34,
103,
19,
-107,
-49,
-84,
-88,
39,
-106,
31,
-92,
-78,
89,
59,
4,
-73,
-99,
122,
16,
-57,
-6,
-28,
29,
93,
104,
5,
-54,
-110,
-93,
103,
-6,
-98,
7,
-17,
79,
-74,
87,
-58,
-26,
92,
69,
49,
-101,
3,
-96
] |
Carleton Harris, Chief Justice.
In November, 1968, the Arkansas Power and Light Company, an appellee herein, filed with the Public Service Commission, in accordance with the provisions of Ark. Stat. Ann. § 73-217-18 (Repl. 1957) for approval of a new rate schedule entitled “Gross-Net Billing Rider Rate Schedule M15”, the new schedule to become effective on December 31, 1968. Pursuant to law, the effective date of this rate schedule was suspended by order of the Commission. Upon filing the rate schedule, notice was given by having a copy served on the elected officials of every municipality in Arkansas in which appellee operated. Thereafter, two separate groups of consumers intervened, attacking the terms, conditions, and provisions of the rate schedule. In January and February of 1969, the Commission conducted hearings in which testimony was taken, with full participation of the commission staff and representatives of the interveners. An order was entered on May 9, 1969, in which the schedule, with certain modifications, was approved. Following approval by the commission, Rate Schedule Rider M15 was applied to billings of the company. No consumer interveners petitioned for judicial review, and the time for review expired. Briefly stated, the order permitted the company, when a customer had not paid his bill within ten business days from the time of billing, to add an amount equal to 8% of the first $15.00 of the bill, plus 2% of the net bill amount in excess of $15.00.
On November 14, 1969, appellant, Commercial Printing Company, Inc., instituted suit in the Pulaski County Circuit Court against appellee and the Public Service Commission, wherein appellant stated that it had followed a practice of paying its bills on or before the tenth day of each month but that as a result of Rate Schedule M15, appellant found itself in the position of being a delinquent consumer; that the application of the penalty was discriminatory against appellant and other consumers, and was unreasonable ánd exorbitant. It was also alleged that the penalty was usurious. The prayer of the complaint was that the penalty be declared null and void; that a restraining order be issued prohibiting the enforcement of the said penalty and that appellee company be restrained from disconnecting utility service to appellant. The complaint was subsequently amended to allege that the suit was brought as a class action by appellant on its behalf and that of the rest of the customers who were affected by the order. Arkansas Power and Light Company answered, denying that the provisions of Rate Schedule M15 were discriminatory, unreasonable, exorbitant, or usurious; asserting that the order of the Commission was final and conclusive, there having been no petition for court review; further, that the complaint constituted a collateral at tack on the orders of the commission and it was prayed that the complaint be dismissed. The company also counterclaimed for the amount which it contended Commercial Printing Company, Inc. owed to it. The Public Service Commission answered, asserting that consideration and determination of the procedures of billing set out in Rate Schedule M15 were matters solely within its jurisdiction, subject only to judicial review, and that no judicial review having been sought, the order <had become final. Subsequently, Arkansas Powea? and Light Company amended its answer to assert that the cause of action was barred by res judicata under the Supreme Court decision in the case of Coffelt v. Arkansas Power and Light Company, 248 Ark. 313, 451 S. W. 2d 881. After the filing of motions by appellant for the commission to be required to file certain records, and power and light company to answer certain interrogatories, appellees moved for summary judgment, supporting said motion with affidavits and exhibits. These included a certified copy of the order of the Public Service Commission approving Rate Schedule Ml5, dated May 9, 1969, and an order of the Public Service Commission dated June 2, 1969, wherein a petition for review and reconsideration filed by intervener Odell Smith for himself and as representative of a class of persons was denied, and Smith’s notice of appeal noted. Further exhibits included a complaint filed in the Chancery Court of Pulaski County as a class action by Kenneth Coffelt, individually, and as a citizen and tax payer of the State of Arkansas, the answer of the Arkansas Power and Light Company to such complaint, the order of the Chancery Court granting a motion for summary judgment in the case of Coffelt v. Arkansas Power and Light Company supra, and a copy of the opinion of the Arkansas Supreme Court affirming the decision of the Pulaski County Chancery Court in that case. The motion was further supported by the affidavit of O. V. Holeman, Manager of Rates and Research of Arkansas Power and Light, which set out that upon the filing of the aforementioned rate schedule with the Arkansas Public Service Commission, copies of the rate schedule and notice of the filing had been filed with city officials of each of the incorporated municipalities in which appellee company provided service. The affidavit incorporated the contents of Rate Schedule M15, and further recited that on December 26, 1968, an intervention was filed by a group of interested consumers in which they objected to the rate schedule; that it was suspended to prevent its becoming effective pending hearings which were subsequently conducted, following a second intervention by an additional group of consumers; that following the approval of the rate schedule by the Public Service Commission, no petition for review of this order was filed with the commission or with the Circuit Court of Pulaski County by any party. The affidavit of the assistant treasurer of the company was simply that appellant had been billed in accordance with the schedule, had not made payment, and was indebted to the company in the amount of $124.58. Counter-affidavits, or exhibits, were not filed by appellant, but it did file an unverified response reiterating that summary judgment should be denied because the order was discriminatory against appellant and the class of consumers represented, and it stated that res judicata could not be relied upon because of Coffelt v. Arkansas Power and Light Company supra, that case being heard entirely on the issue of usury and not on the issue of discrimination. The court granted the motion for summary judgment, finding that the commission was the agency invested by law with the authority to hear matters pertaining to the issues raised by appellant, and that appellant was afforded an adequate, complete and expeditious remedy at law under the statutes authorizing appeals from orders of the commission for judicial review. The court found that there was no genuine issue as to any material fact, and granted the summary judgment, dismissing the complaint. From the judgment so entered, appellant brings this appeal. For reversal, it is simply urged that “The lower court was the proper forum to adjudicate the illegal and unlawful order of the Public Service Commission”._
Appellant commences its brief with an erroneous premise. From appellant’s brief:
“It must be assumed that all of the allegations of the complaint and the amended complaint are true. The lower Court granted motions for summary judgment filed by both defendants and found that there was no genuine issue as to any material fact.
It cannot be denied, for purposes of review, that the order in question is discriminatory, illegal and unjust. It must be admitted, for the purposes of review, that these facts are not in dispute. Therefore, we consider this matter on appeal on the basis of the cause of action stated in the complaint and the amended complaint in light of the laws of the State of Arkansas.”
We do not treat motions for summary judgment in the same manner as a demurrer. It is true that when a demurrer is filed, the allegations of the complaint are treated as true for the purpose of testing the sufficiency of the complaint in stating a cause of action. But this is not true where a motion for summary judgment is supported by affidavits and other exhibits. In Coffelt v. Arkansas Power and Light Company supra, we said:
“We should add that the appellant is mistaken in suggesting in his brief that the facts supporting the motion for summary judgment must be treated as being disputed by the plaintiff’s verified complaint. That view was originally taken by some federal courts in construing the Federal Rules of Civil Procedure, but both the Rules and our summary judgment act have been amended to make it clear that proof must be met with proof. This is the pertinent language in Act 160 of 1967: ‘When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.’ Ark. Stat. Ann. § 29-211 (e) (Supp. 1969). Inasmuch as the plaintiff in the case at bar filed no response whatever to the defendant’s motion for summary judgment, the facts established by that motion stand undisputed.”
No specific reason whatsoever is set forth why the order is discriminatory, but at any rate, the matters complained of are clearly rate making functions. Were the court to have complied with the prayer to determine the issue urged in appellant’s complaint, it would have been necessary to originally determine all of the issues and questions which arise at a rate hearing, functions which are certainly legislative and administrative in nature. As pointed out in the brief filed by the Arkansas Power and Light Company, what would have been the final result if the court had denied the motion for summary judgment, found that res judicata did not apply, and that the court had jurisdiction to hear the facts which appellant contends would have disclosed discrimination? Let us assume that the court heard the evidence and found that the rate schedule operated in a manner to discriminate against appellant. Would the court then have redesigned the schedule, added new terms, or taken away some of its provisions? If so, it is clear that it would have been engaged in what the General Assembly has declared to be a legislative function, i. e., the regulation of rates of a public utility. If, in fact a court is empowered to take such action, what then is the need for the Arkansas Public Service Commission, and its group of experts? The only other action the court could have taken would have been to refer the matter back to the Public Service Commission for further consideration. The effect of such action would result in appellant being given a judicial review several months subsequent to the legal time limit provided in Ark. Stat. Ann. § 73-233 (Repl. 1957). While apparently a notice of appeal was given by one of the interveners, the matter was not pursued. To allow the procedure contended for by appellant would be to repeal the statutory provision for court review of the Public Service Commission orders; the appeal provisions would simply, in effect, be stricken from the statute.
In Southwestern Gas & Electric Co. v. City of Hatfield, 219 Ark. 515, 243 S. W. 2d 378, we said:
“Orderly procedure and administrative efficiency demand that the regulatory body be vested with authority to make preliminary determination of legal questions (our emphasis) which are incidental and necessary to the final legislative act. Otherwise endless confusion would result because different phases of the same case might be pending before the Commission and the courts at one time.”
This does not mean that no adequate remedy at law is provided. In McGehee v. Mid South Gas Co., 255 Ark. 50, 357 S. W. 2d 282, we squarely held that the procedures (mentioned in the sections already referred to) provide an adequate remedy at law. The background of that case is as follows: Mid South Gas Company and Arkansas Louisiana Gas Company entered into an agreement by the terms of which Arkla would issue a certain number of shares of its common stock to Mid South and would assume the debts and obligations of Mid South, all in exchange for the properties and assets of Mid South as a going concern. Since both of these companies were public utilities, the agreement was subject to the approval of the Public Service Commission, and the two companies filed their joint application for approval of the plan, the commission setting the matter for hearing. McGehee was a stockholder in Mid South and filed a complaint in the Pulaski Chancery Court against that company, its officers and directors, alleging in his complaint that it was a class suit in his behalf and that of others similarly situated, and that, without notice to the stockholders, the officers and directors of Mid South had entered into the agreement with Arkla. He then set out several reasons why he considered the agreement to be illegal and void and prayed that Mid South, its officers and directors, be restrained from further proceeding in the agreement with Arkla. On the same day that McGehee filed his suit in Chancery Court, he also filed before the Public Service Commission a motion for continuance, advising the commission of his chancery suit and praying that the commission delay any action with regard to approval of the plan until the chancery case could be heard and decided. He also filed a response and objection to the proceedings, presenting the same questions that he had raised in the chancery court.
The Public Service Commission overruled his motion for continuance, denied the objections and response of McGehee, and approved in every respect the agreement. Thereafter, Mid South filed a motion in the Chancery Court to dismiss McGehee’s complaint, setting out inter alia that the same questions were being presented in the chancery case that had been presented before the commission; that McGehee could appeal the adverse ruling by the commission, and that such remedy at law by appeal was adequate and complete. McGehee responded, claiming that the Public Service Commission was without jurisdiction to hear the matter; that his rights of appeal from the commission’s ruling were not adequate and complete; that the commission was merely an administrative tribunal and had no authority to adjudicate the questions raised in the chancery court. The chancellor sustained the motion to dismiss and Mc-Gehee appealed to this court.
In a comprehensive opinion, this court mentioned several of our prior holdings, and then stated:
“In these four cases—and others could be cited to the same effect—we have held that the Commission in the first instance and the courts on appeal could consider such matters as each of the five points of attack made by McGehee in the case at bar. It thus follows that McGehee’s remedy through the proceedings before the Commission and on appeal, was full, adequate and complete in that he could urge every point that he alleged in the Chancery Court. That his remedy through the Commission’s proceedings was expeditious is shown by the fact that the Commission’s Order was made on July 5, 1961, affirmed by the Circuit Court on September 25, 1961, and an appeal to this Court was dismissed on February 19, 1962, because McGehee had not pursued his appeal expeditiously and within the time prescribed by law. The fact that McGehee lost his appeal to this court—questioning the Public Service Commission’s Order—by failing to prosecute it in due time, does not reinstate equity jurisdiction, because' where a legal remedy has been lost, through failure to seek it at the proper time, equity will not for that fault entertain jurisdiction.”
It should be clear that since this decision applies to the extraordinary equity jurisdiction of the chancery court, it very clearly would also apply to the circuit court’s jurisdiction at law. Particularly pertinent to the present litigation is the fact that McGehee’s appeal from the order of the commission to the circuit court was not heard—due to the fact that he did not timely prosecute it. Here also, no appeal was prosecuted, leaving the decision of the commission unchallenged—and fully effective.
Nor was this court’s action in McGehee inadvertently taken; rather it was specifically called to the attention of this court by the lone dissenter who, in effect, presented the same argument made here. Quoting from the dissent:
“If McGehee can substantiate the allegations of his complaint in chancery court, it means money in his pockets. I assume that no one questions his right to try to prove his case against Mid South in a court of competent jurisdiction. The majority opinion denies McGehee this right unless the Arkansas Public Service Commission is in fact such a court.
To my mind, to state the above issue is to answer it. I have never heard it contended or even intimated that the Arkansas Public Service Commission was a court, in law or equity, to resolve legal differences between individuals or corporations.
It cannot be disputed that the Public Service Commission has only such powers as are given it by the legislature. Ark. Stats. § 73-115 contains that grant of powers which is ‘all matters pertaining to the regulation and operation of—’ (naming the several utilities). Nowhere is the commission invested with the general powers of a court. Yet, the effect of the majority opinion is to invest the commission with the general jurisdiction of a duly constituted court.”
The dissenting opinion then states that the right of appeal to the circuit court is not adequate because, in a court hearing, evidence would be introduced in accordance with rules developed by decisions over a long period of time, but that the commission is not bound by the strict technical rules of pleading and evidence; that the appeal to the circuit court would be only heard upon the record presented, which in the view of the dissenting Justice, was not adequate. As stated, this court, by a vote of six to one, held to the contrary, and what was said in McGehee, i. e., that his remedy “through the proceedings before the commission and on appeal, was full, adequate and complete # * *” is fully applicable to the instant litigation.
Appellees also offer an additional defense to appellant’s complaint, viz, that the cause of action was barred under the doctrine of res judicata, this defense being based on our opinion in Coffelt v. Arkansas Power and Light Company supra. There may well be merit in this contention, but since we consider the first point, heretofore discussed, to be dispositive of the question posed in the litigation, there is no need to discuss the second.
Affirmed.
The court also held that the motion of appellant to require the commission to file certain records and for the power and light company to answer certain interrogatories “are therefore moot”. The counter-claim of the power and light company was also dismissed without prejudice to the company for recovery of any sums due it by appellant under the appellee’s approved rate schedule. | [
48,
-20,
-80,
76,
8,
-63,
16,
-110,
91,
-15,
-91,
83,
-17,
-28,
-108,
113,
-13,
121,
-11,
105,
-28,
-78,
37,
98,
2,
-13,
-7,
-57,
-80,
95,
-28,
-57,
91,
40,
-54,
87,
-58,
66,
-51,
30,
-110,
10,
-87,
101,
121,
70,
48,
105,
82,
-49,
85,
-113,
-5,
44,
24,
74,
109,
44,
-39,
32,
-62,
-14,
-101,
-121,
127,
4,
32,
-92,
-102,
5,
-32,
62,
-104,
49,
40,
-8,
115,
-90,
-122,
116,
109,
-103,
12,
32,
98,
67,
5,
-81,
-84,
-88,
54,
-34,
-99,
-90,
-94,
57,
35,
7,
-74,
-107,
110,
-108,
7,
-2,
-9,
-107,
91,
108,
-117,
-114,
-74,
-95,
44,
-25,
-98,
3,
-17,
-42,
-72,
116,
-18,
-14,
126,
71,
59,
-101,
86,
-123
] |
George Rose Smith, Justice.
This appeal is from the probate court’s denial of a claim filed by the appellant, Arkla Chemical Corporation, against the estate of Harry C. Palmer, Jr., deceased. The principal contested issue in the probate court was whether Arkla’s claim, which arose from the sale of fertilizer, was (a) against Palmer’s estate or (b) against Palmer Aero Service, Inc., a domestic corporation in which Palmer and his family owned all the stock. The probate judge, in denying the claim, held that Arkla, after Palmer’s death, had elected to do business with the corporation and accordingly had no claim against the decedent’s estate. The correctness of that holding is the pivotal issue on appeal.
The facts, as reflected by a voluminous record containing much testimony and many exhibits, must be stated in some detail.
Palmer, during his lifetime, was the owner of an agricultural flying service, which sold seed and fertilizer and dispersed those commodities from airplanes. In 1962 Palmer organized the corporation, Palmer Aero Service, Inc. On the date of Palmer’s accidental death in a plane accident, May 28, 1968, the corporation’s outstanding S3 shares of stock were owned in the ratio of 30 by Palmer and one each by his former wife (the appellee) and their two children. (The Palmers had been divorced in February of 1968.)
It is shown without dispute that during Palmer’s lifetime he was not careful to keep his own affairs separate from those of the corporation. In January of 1968, about four months before Palmer’s death, he applied to Arkla for the privilege of purchasing fertilizer on credit. That application was made in the name of the corporation and was accompanied by a corporate financial statement listing assets such as airplanes, trucks, and real estate, that were actually owned by Palmer or by Palmer and his wife. At the same time Palmer executed Arkla’s standard form of guaranty, by which he individually guaranteed payment of the account. Counsel for Arkla correctly states in his brief that at the outset it made little difference to Arkla whether the business was corporate or individual, since Arkla had the personal guaranty.
Arkla approved the application for credit and began selling chemical fertilizers to Palmer or to the corporation—a point unquestionably open to some doubt. During the months preceding Palmer’s death Arkla’s monthly statements were paid with sufficient promptness to enable the purchaser to take the 2% discount allowed for payments within 30 days.
Palmer was killed on May 28, 1968. Representatives of Arkla learned of the accident within a few hours. In a conversation some two weeks later between Arkla’s salesman and Mrs. Palmer, who had been named as executrix of the will, it was stated by Mrs. Palmer that she intended to continue to operate the business in the same way as it had been run in the past. On September 5, 1968, Mrs. Palmer as executrix filed a petition in the probate court reciting that Palmer had been the majority stockholder in the corporation and asking for authority “to exercise the controlling interest in Palmer Aero Service, Inc., and to continue the business of said corporation.” On the same day the probate court entered an order granting the petition and directing the executrix to exercise the controlling interest in Palmer Aero Service, Inc., and to continue the business of the corporation.
On the date of Palmer’s death the business owed Arkla $22,971.86 for fertilizer bought on credit. Arkla’s witnesses candidly admitted that the account was promptly paid by the company, in time to obtain the 2% discount. During June, July, and August the company continued to buy from Arkla. Those sales totaled $34,-674.16. The company made payments amounting, according to Arkla’s witness, to $33,354.76—a figure that includes the $22,971.86 owed at Palmer’s death. Most of the checks for those payments are in the record. They were drawn on the corporate bank account, were signed by Mrs. Palmer in the corporate name, and usually contained notations showing that the discount for prompt payment was being taken.
Despite those prompt payments, the business was evidently losing money. (In fact, a trial balance later filed by the executrix showed an operating loss of $57,144.81 for the year 1968, most of which seems to have accumulated after Palmer’s death.) On October 7, 1968, Arkla’s attorney verified and filed Arkla’s claim against Palmer’s estate. The original claim was for $25,552.49, but Arkla now asserts that only $17,003.88, with interest, is still due. Attached to the claim as its only exhibit now in the record was a copy of Palmer’s guaranty agreement, which seems to indicate that the claim against the estate was initially based upon that agreement.
On October 16, 1968, the corporation and the estate executed a written agreement with the principal unsecured creditors of the estate. The probate judge, in rejecting Arkla’s claim against the Palmer estate, based his conclusion almost entirely upon the language of the agreement. In view of its controlling importance in the case we find it necessary to quote its pertinent language at length:
AGREEMENT
By this instrument executed . . . the 16th day of October, 1968, Palmer Aero Service, Inc., a corporation . . . and Harriet L. Palmer, Administratrix of the Estate of H. C. Palmer, Deceased, First Parties, and Planters of Pine Bluff, Inc., Arkla Chemical Corporation, Thompson-Hayward Chemical Company and Nipak, Inc., Second Parties, have contracted and agreed as follows:
1. Second Parties are the principal unsecured creditors of Palmer Aero Service, Inc., and, because of accounting practices and intermingling of assets of Palmer Aero Service, Inc., and personal assets of H. C. Palmer in his lifetime, assert claims against the Estate of H. C. Palmer, Deceased, for the same amounts. The balances claimed by Second Parties are as follows:
Planters of Pine Bluff, Inc. $49,398.02
Arkla Chemical Corporation 24,291.26
Thompson-Hayward Chemical Company 7,320.03
Nipak, Inc. 5,868.68
Total $86,877.99
These accounts have not been verified and are subject to correction for errors by either party.
2. It is recognized that Palmer Aero Service, Inc. and the Estate of H. C. Palmer, Deceased, either severally or jointly, have insufficient liquid assets to liquidate .the said debts and that because of the security held by various secured creditors upon the principal assets of the corporation and the estate, any forced liquidation would result in substantial losses both to First Parties and Second Parties. For this reason it is to the mutual interest of First Parties and Second Parties to continue Palmer Aero Service, Inc. as an operating business with the purpose of attempting to recoup previous losses during the 1969 crop season and to place the business in such condition that it may ultimately be operated at a profit.
3. The principal asset of Palmer Aero Service, Inc. consists of certain accounts receivable aggregating, as of October 15, 1968, . . . $39,599.82. In addition, the Estate of H. C. Palmer, Deceased, is the owner of motor vehicles, airplanes and equipment used in the business of Palmer Aero Service, Inc. as set forth in the schedule hereto attached as Exhibit “A” and made a part hereof; said personal property is encumbered in part by security agreements or liens in favor of First National Bank of Poinsett County, Mid-South Grain Company, Citizens Bank of Jonesboro, and Associate Financial Service, some of which liens may be second liens.
4. It is agreed that First Parties will cause an account to be opened in Mercantile Bank of Jonesboro, Arkansas, in the name of Palmer Aero Service, Inc., Trust Account, with signatures authorized by Mrs. Harriet L. Palmer and Erma Brady (a secretary in the office of Frierson, Walker & Snellgrove, Jonesboro, Arkansas), and that eighty per cent (80%) of all collections from the aforementioned accounts receivable aggregating . . . $39,599.82 will be deposited in that account as collected and that the said trust account shall be a trust fund to be divided among the Second Parties pro rata according to the total amount of their respective accounts. The collections of said accounts receivable shall continue until the total collections deposited in said account aggregate thirty per cent (30%) of the total amount of accounts payable to the Second Parties or until all reasonable efforts to collect the said accounts have been exhausted; thereupon, the total amount deposited in the said account shall be distributed to the said Second Parties pro rata. The funds in the trust account shall be used for no other purpose.
5. The balance of the collections of said accounts receivable shall be deposited to the general account of Palmer Aero Service, Inc. from which the officers of the corporation shall pay the expenses of operating the business and any accounts payable to other creditors, according to their judgment.
6. Harriet L. Palmer, as Administratrix of the Estate of H. C. Palmer, Deceased, will apply to the Probate Court of Poinsett County, Arkansas, for approval of this agreement insofar as the said Estate is concerned and for authority to pledge and encumber all of the personal property of said Estate set forth in Exhibit “A” attached hereto and to execute proper financing statements and security agreements to secure Second Parties, according to their respective interests. The said security agreements and financing statements . . . shall be subject to any existing liens.
7. In consideration of the payments agreed to be made and the security afforded by the preceding paragraph, Second Parties jointly and severally agree that they will withhold and forego any legal action against Palmer Aero Service, Inc. or against the Estate of H. C. Palmer Deceased, to collect their respective accounts until March 31, 1969 ....
8. On March 31, 1969, if First Parties have performed the agreements undertaken to be performed by them hereunder, and are able to demonstrate to Second Parties their ability to operate the business of Palmer Aero Service, Inc. during the crop season of 1969, and to make provisions for reasonable payment upon the indebtedness due Second Parties from the operating income of Palmer Aero Service, Inc. during the year 1969, Second Parties agree that they will withhold and forego legal action upon their respective debts until November 15, 1969, upon such terms and conditions as will enable them to receive payments pro rata from the operating income of Palmer Aero Service, Inc. during the year 1969.
9. Upon the approval of Second Parties of the terms of this agreement, First Parties undertake to present same to the Probate Court of Poinsett County for its approval and thereupon to execute financing statement and security agreement as herein provided. The trust account shall be set up effective upon the date of this agreement irrespective of approval of the Probate Court of Poinsett County, Arkansas, and accounts receivable shall be paid into the said account as collected, independently of other terms of this agreement.
# # *
Palmer Aero Service, Inc.
By Harriet L. Palmer
President
Estate of H. C. Palmer, Deceased
By Harriet L. Palmer
Administratrix
FIRST PARTIES
Planters of Pine Bluff, Inc.
By M. Dunklin, Vice President
Ark-La Chemical Corporation By A. L. Crossland, V. P.
Thompson-Hayward Chemical Company By ........... -
Nipak, Inc.
By -
SECOND PARTIES
Attached to the agreement, as Exhibit “A,” was a list of airplanes, trucks, and other personal property.
Mrs. Palmer testified that when her attorneys learned of the agreement they were somewhat upset about it. Even so, Mrs. Palmer performed it at least to the extent of collecting the accounts receivable and sending to Arkla, in February, 1969, a check for $7,287.38, which was exactly 30% of Arkla’s corrected claim of $24,291.26. It does not appear, however, that Mrs. Palmer made any attempt to have the agreement approved by the probate court or to execute the security agreements mentioned in paragraph 9 of the contract.
Apparently Arkla did not sell any fertilizer to the Palmer company after the end of the 1968 crop year. On June 17, 1969, Arkla filed a petition in the probate court asking that its claim (in the amount of $17,003.88) be approved either as a Class A claim, on the theory that it arose out of a business conducted by the executrix for the estate, or as a Class C claim, on the theory that it was a debt owed by Palmer at the time of his death and never paid. The probate court, as we have said, disallowed the claim.
The appellant’s single point for reversal is that the trial court erred in refusing to allow the claim. Under that broad heading counsel presents a manifold argument that cannot readily be restated or summarized. Counsel’s reasoning, however, embraces three basic contentions that must be discussed separately.
First, and primarily, it is argued that Arkla’s demand should have been approved as a Class A claim, upon the theory that the corporate entity ought to be disregarded. We agree with the probate judge’s conclusion that such a contention is contrary to the proof and to the position taken by the unsecured creditors in the contract which we have quoted.
It is clear from the record that after Palmer’s death the unsecured creditors had a choice of courses to follow. Arkla, for example, might have stopped doing business with Palmer Aero Service and have sought instead to collect the account from Palmer’s estate. That choice was understandably not attractive to Arkla’s manage ment, because the assets of Palmer’s estate were mortgaged to other creditors. Mrs. Palmer testified without contradiction that everything was mortgaged to the hilt. Paragraph 2 of the contract recognized the realities of the situation by reciting that any forced liquidation would result in substantial losses to all concerned.
As the contract itself stated, the unsecured creditors elected instead to continue doing business with the corporation in the hope that the company could eventually pay its debts. The agreement clearly and unequivocally recognized the separate existence of the corporation and the fact that the trucks, airplanes, and other items of personal property were owned by the estate. Arkla actually received 30% of its claim under the arrangement put into effect by Paragraph 4 of the contract. It is a familiar rule that one cannot take advantage of the favorable terms of an agreement and at the same time disclaim those that prove to be burdensome. Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S. W. 2d 500 (1958).
We find no sound basis for the appellant’s insistence that the corporate entity should be disregarded. Ordinarily a corporation is a separate and distinct entity from its stockholders. McCarroll v. Ozarks Rural Elec. Co-op. Corp., 201 Ark. 329, 146 S. W. 2d 693 (1940). The corporate structure is to be disregarded only when it is illegally abused to the injury of a third person. Rounds 6- Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S. W. 2d 1 (1949).
In the case at bar the executrix was authorized by the probate court to exercise the estate’s controlling interest in the corporation and to continue the business of the corporation. Thus the court order itself recognized the separate existence of Palmer Aero Service, Inc., as did the contract with the unsecured creditors. It is unfortunate that the corporation’s efforts to continue in business led eventually to its insolvency, but counsel has pointed to no fact in the record supporting the suggestion that the corporate form was illegally abused. To the contrary, all the company’s bank statements and records were open to inspection, but no specific instance of fraudulent conduct has been brought to our attention.
Secondly, it is argued that Arkla’s demand should have been allowed as a Class C claim, upon the theory that the debt owed to Arkla by Palmer on the date of his death was never paid. The great preponderance of the evidence, if not the undisputed proof, rebuts that contention. At Palmer’s death the business enterprise— individual or corporate—owed Arkla $22,971.86 for fertilizer purchased on credit. Arkla’s own witnesses testified that the amount then owing was paid in full after Palmer’s death. Here, for example, is the testimony of the claimant’s employee, Frank Felts:
Q. On the date of his death, either Harry C. Palmer or Palmer Aero Service, one or the other, owed a considerable amount of money to Arkla Chemical Corporation?
A. Yes, sir.
Q. And that has all been paid?
A. Yes, sir.
Q. In other words, they were paid by invoices, is that right, as they came in?
A. That is correct.
ir •a' *J?
Q. Every dime, either Harry C. Palmer or Palmer Aero Service owed at the date of his death was paid as per the invoices?
A. Yes, sir.
In view of such testimony the appellant’s second argument need not be discussed further.
Thirdly, counsel refers to the guaranty agreement executed by Palmer in January, 1968. That agreement, however, provided that, as to future obligations, it could be terminated at any time by Palmer’s giving written notice to Arkla. It is well settled that such a revocable guaranty contract is terminated by the guarantor’s death, or, as it is sometimes put, by the other party’s knowledge of that death. First Nat. Bank of Boston v. McGowan, 296 Mass. 101, 5 N. E. 2d 5 (1936); Bedford v. Kelley, 173 Mich. 492, 139 N. W. 250 (1913); Tyler Bank & Tr. Co. v. Shaw, 293 S. W. 2d 797 (Tex. Civ. App., 1956). The reasons for the rule were stated with clarity in Gay v. Ward, 67 Conn. 147, 34 Atl. 1025 (1895):
But, when the guarantee has knowledge of the death of the guarantor, such knowledge works a revocation of the guaranty. The guarantee no longer relies upon the credit of the deceased guarantor. Each advance made by the guarantee constitutes a fresh consideration, and, when made, an irrevocable promise or guaranty on the part of the living guarantors. Each advance thereafter made is upon the credit of the living, not of the dead, guarantor. Were this not so,—unless it be held that the representatives of the deceased may upon notice terminate the guaranty,—the guaranty, terminable at the option of the guarantor during life, becomes, upon his death, never ending. The limitation which the law gives the living is denied the dead. Estates must remain unsettled, devises of property be withheld, so long as the guaranty may last, and the representatives of the deceased guarantor be powerless to save his estate from a loss which neither he nor they authorized or received benefit for. Such a result justifies and impels a court in reading into the guaranty a limitation of termination of the guaranty, upon notice of the death of the guarantor, as well as upon notice from the living guarantor.
In fact, Arkla’s form of guaranty contract was apparently drafted with knowledge of the above rule, for it provides that after the guarantor’s death the contract may be terminated by the sending of written notice of the death to Arkla, by registered mail. Here Arkla concededly had actual knowledge of Palmer’s death within a few hours after the fatal accident. Thus written notice by registered mail would have supplied no information that the company did not already have.
We should add, in closing, that we are not called upon to decide certain issues mentioned in the appellant’s brief. Some complaint is made about Mrs. Palmer’s management of the estate, but Arkla, not being a creditor of the estate, is not in a position to raise such an issue. Nor do we express any opinion about Mrs. Palmer’s duty to specifically perform the obligations set out in Paragraph 9 of the contract. The probate court is not the proper forum for a suit for specific performance. Merrell v. Smith, 226 Ark. 1016, 295 S. W. 2d 624 (1956). Indeed, Arkla’s counsel was evidently aware of that rule, for at the beginning of the hearing in the court below this statement was made by Mrs. Palmer’s attorney: “There is another case pending. It is a chancery case wherein Arkla Chemical sued Mrs. Palmer, the estate, and the corporation. It is an action for specific performance of a contract.” All we hold in the case at bar is that the appellant failed to establish a claim against Palmer’s estate by a preponderance of the evidence.
Affirmed. | [
112,
108,
120,
28,
24,
-32,
-86,
27,
89,
-22,
103,
83,
-17,
-53,
-123,
41,
-19,
31,
117,
106,
-9,
-73,
83,
120,
-46,
-5,
-7,
-51,
-80,
-33,
-20,
-33,
12,
48,
-54,
85,
-30,
-124,
71,
92,
-36,
0,
43,
109,
-7,
-124,
48,
107,
-42,
15,
65,
-113,
-13,
41,
31,
67,
9,
46,
123,
-83,
-63,
-72,
-85,
4,
127,
19,
32,
4,
-104,
-27,
72,
14,
16,
-111,
24,
-24,
50,
-90,
-122,
-12,
43,
-103,
8,
34,
99,
0,
-91,
-17,
-8,
-104,
-114,
-66,
13,
-121,
22,
112,
65,
113,
-66,
-99,
120,
16,
6,
-12,
-2,
-123,
95,
-4,
3,
-117,
-10,
-127,
7,
106,
-100,
3,
-25,
-93,
50,
113,
-55,
-94,
93,
71,
126,
-101,
71,
-48
] |
Carleton Harris, Chief Justice.
Appellants, Martin L. Stouffer and his wife, Agnes Stouffer, instituted suit in the Sebastian County Chancery Court against the City of Fort Smith, and the appropriate officers of the city, seeking an order requiring appellees to re-zone certain property owned by the Stouffers, as commercial property. The complaint alleged that the property sought to be re-zoned had been used for commercial purposes at or prior to the time of the adoption of Act 108 of 1929, and had been used for such purposes since that time. It was further asserted that a petition had been filed with the appellees seeking the re-zoning and that appellants had appeared before the City Planning Board, which had refused to act upon the petition; that appellants had asked the City Commission of Fort Smith to grant the petition, but that said commission had refused the request. Appellants prayed that the court require appellees to approve the petition and to re-zone the property for commercial uses pursuant to the statutes of Arkansas. Affidavits in support of the complaint were offered as provided by Ark. Stat. Ann. § 19-2832 (Repl. 1968). After the filing of an answer denying the pertinent portions of the complaint, the case proceeded to trial, and following the taking of evidence, the court found that appellants’ claim rested solely on their proof of compliance with § 19-2832; that under the evidence and testimony, appellants had failed to discharge the burden imposed upon them “to show by clear, convincing and a preponderance of the evidence, that they and/or their predecessors in title have used the property concerned ‘at or prior to March 9, 1929,’ and, ‘continuously since that time for commercial purposes’ ”. The complaint was dismissed, and from the decree so entered, appellants bring this appeal. For reversal, it is simply urged that the trial court erred in finding that appellants failed to prove commercial usage since 1929.
The claim of appellants that the property should be re-zoned is based on the provisions of Section 19-2832 (Act 115 of 1961), which reads as follows:
“Any property used for commercial purposes at or prior to the time of adoption of Act 108 of the Acts of the General Assembly of the State of Arkansas for the year 1929 [§§ 19-2811—19-2818], [ ] and which has been used continuously since that time for commercial purposes, together with any other contiguous property used for rental or commercial purposes regardless of the period of such use, upon application to the planning commission and/or governing body in a city of the first class, accompanied by affidavit in support thereof, shall be zoned for commercial use.”
Accordingly, the question in this litigation is whether it has been established that the property sought to be re-zoned has been used for commercial purposes continuously since March 9, 1929, (the date of the approval of Act 108 of 1929).
It might first be mentioned that the property is located in a residential zone, but was permitted as a non-conforming use when the property was zoned as residential. Appellants’ effort to re-zone the property to commercial commenced in November 1966. The testimony of ten witnesses, including appellants, was offered on behalf of the Stouffers, but only four* of these, including Mr. Stouffer, testified relative to the length of time the property had been used for commercial purposes. This appellant, 45 years of age, stated that he and his wife had owned the property sought to be rezoned, (the East Half of Lot 11 and all of Lot 12 in Oakland Heights Addition to the City of Fort Smith) for about five years; that prior to that time he and his brother had owned it as a partnership for three or four years; preceding that period, they had bought it from his mother, and before that, the property was owned by his father. He testified that it had hever been used for residential purposes, but, to the contrary had been used to make a livelihood for the family. Stouffer is in the automotive parts business, and has three buildings on the land, an office building, a shop building, and a warehouse building. He said that he was seven or eight years old when he became familiar with the property and he could vaguely remember that the office building was constructed either in the latter part of 1929 or the first part of 1930. The witness stated that the first use of the property was as a service station and that he thought his oldest brother operated the service station for two or three years. He said that he thought it was next used as a sandwich shop until approximately 1932 or 1933; next, it was used as a grocery store from 1933 to 1938 or 1939. Stouffer testified that during that period the building was used for a number of different things, for parts, and machinery, “The building was being used as just a bunch of different things”. He stated that he was in military service from the latter part of 1941 through 1945, and that the brick (shop) building was built after the war, being completed in 1947. Apparently, from his testimony, two types of businesses were being operated for a portion of the same time, since it will be remembered that he stated the building was used (by a man named Obre) for a grocery store from about 1933 until 1938 or 1939, and further stated that an excelsior plant operated between the years 1933 and 1935, “maybe 1936. There is some argument in the family about that”. The witness said that he operates a rebuilder’s supply business, not rebuilding; that nothing is rebuilt, but he only supplies rebuilders with rebuildable automobile parts.
Gus Bauer testified that he was familiar with the property in 1928 and 1929, and at that time there was a car repair shop located there; that the corner had never been used for residential purposes. Bauer then testified that Martin Stouffer had been working there all the time from 1929, “all the time, absolutely”. The witness mentioned several types of businesses that were operated on the premises, and attempted to approximate the length of time these businesses were in operation; however, on cross-examination, he was unable to state the type of business that was operated during a particular number of years, and the only fact that Mr. Bauer was emphatic about was that the property had never been used as residential property.
Fred Goebel testified that he had been familiar with the Stouffer property since the early thirties. “They worked on cars, and they had an excelsior plant, had a junkyard, had some kind of a little business place, a little rock building. I don’t know what it was. But they have had something there; there has just been something there going on all the time. * * * Yes, sir, somebody has been making money doing something.” When asked if Martin Stouffer had used the property a lot, he replied, “They were just a bunch of kids at that time. Yes, since then, Mr. Stouffer passed away, you know, and the boys have maintained some kind of a business there, to a great extent connected with the automotive end of the trade”. He said there was a building on the property now used in the car parts business which used to be an excelsior plant; however, other proof offered reflected that this building burned in about 1956.
Charles Yutterman testified that he had been familiar with the property since 1928 or 1929, and that there had never been any residential Use of the land. When asked about the types of businesses that had been operated on the property, he replied, “There was a little restaurant, filling station of some kind, then there was some kind of a garage, they had some kind of a mill deal there, and then it has been a salvage, rebuilding thing for several years”. The witness was unable to give the periods of time when these several businesses had operated, or the order in which they occurred.
Julius Hogrefe testified on behalf of appellees that he had been familiar with the Stouffer property since 1955, and at that time there was nothing but a stone building on the premises, and there was no business activity in the building, it being vacant. He said that he saw it practically every day on his way to pick up the mail, and the building was vacant for a period of about five years. The witness stated that during that time there was no other business activity, i. e., buying or selling, except that a shed was being built to house the excelsior plant. Hogrefe said that he visited Stouffer (apparently Martin’s father) in the middle forties, prior to the construction of the brick building, and that Stouffer was working on a boat (for personal use), but the boat was not completed, and that no other activity was going on. Twelve other persons testified on behalf of appellees, but their testimony actually amounted only to objections to the re-zoning, and their evidence was not pertinent to whether Section 19-2832 had been complied with.
We agree with the chancellor that appellants have not shown compliance with the provisions of the required section by a preponderance of the evidence. It might be here stated that we do not take the court’s finding, earlier quoted, to mean that it was holding that the required burden of proof was clear and convincing evidence; such a finding would be erroneous, but it appears that when he stated, “Plaintiffs have failed to discharge the burden imposed upon them to show the clear, convincing and a preponderance of the evidence, * * that the property had been used continuously since March 9, 1929, for commercial purposes, that he was simply saying that the evidence offered by appellants was not sufficiently clear and convincing to constitute a preponderance. In other words, the witnesses would frequently make a general statement, but on cross-examination could not testify as to the specific facts in support of such a general statement. Of course, Stouffer himself was away for a four year period during the war, and there is actually no testimony covering this specific period. The testimony of Bauer is bound to be incorrect, at least in one respect, for he stated that Martin Stouffer had been working “all the time, absolutely” since 1929, and in fact stated that Marty “took over in 1929”. Yet, the evidence clearly shows that Stouffer was only seven or eight years of age at that time. Be that as it may, it is easy to see why the chancellor considered that the proof lacked a convincing quality; the evidence was simply too vague to establish continuous commercial use since 1929. Also, there was affirmative evidence, heretofore mentioned, that there was a five year period when the property was not used at all. Let it be remembered that the statute does not simply require that it be shown that property has not been used for residential purposes; to the contrary, there is a positive requirement, viz, that it be shown that it has been continuously used for commercial purposes.
In addition, the statute has been attacked as unconstitutional, it being asserted that it is in conflict with the prohibition contained in the Fourteenth Amendment to the Constitution of the State of Arkansas, same providing that the General Assembly shall not pass any local or special act. Under the view that we take, expressed in this opinion, there is no occasion to discuss that contention.
Since we are unable to say that the Chancellor’s findings are against the preponderance of the evidence, it follows that the decree should be affirmed.
It is so ordered.
The city was added as a party defendant after the original complaint had been filed.
These eight sections were repealed by Act 186 of 1957.
The other witnesses testified to such matters as the traffic count; that commercial property was located something like a quarter of a mile away; some who had land nearby testified that they had no objections to the Stouffer property being zoned commercial. | [
112,
-18,
-96,
78,
-102,
-64,
24,
-68,
88,
-55,
-25,
83,
-83,
-56,
20,
125,
-29,
29,
116,
121,
-57,
-74,
22,
106,
18,
-13,
27,
-59,
-8,
-51,
-11,
-58,
79,
32,
-62,
-35,
70,
-32,
-113,
-100,
14,
-128,
11,
109,
-40,
64,
16,
42,
22,
15,
117,
-17,
-14,
44,
17,
-63,
72,
44,
-55,
-92,
89,
-8,
-56,
28,
125,
23,
1,
52,
-102,
5,
72,
14,
-112,
53,
8,
-72,
119,
-78,
-122,
116,
111,
-101,
12,
32,
98,
0,
69,
-1,
-96,
-115,
7,
-6,
-99,
-89,
-90,
17,
75,
97,
-65,
-107,
125,
84,
75,
-6,
110,
53,
25,
108,
15,
-82,
86,
-79,
22,
-71,
-124,
19,
-29,
-121,
32,
113,
-55,
-30,
126,
87,
19,
-53,
-122,
-16
] |
Lyle Brown, Justice.
Appellants are Martha U. Heiss, executrix of the estate of Henry A. Heiss, and Dorthea T. Hall, individually and as executrix of the estate of T. M. Hall. Appellee is the carrier of an automobile insurance policy containing uninsured motorist provisions and issued to T. M. Hall. The latter, accompanied by Henry A. Heiss and Dorthea T. Hall, collided with an uninsured motorist. Mr. Hall and Mr. Heiss received fatal injuries and Dorthea T. Hall was seriously injured. Another passenger in the Hall car, W. J. Robertson, received minor injuries for which he was satisfactorily compensated and he is not a party to the appeal. The two estates and Mrs. Hall were paid $2,000 each for medical which was the maximum under the medical coverage. Robertson was paid $565.20. Appellee then filed this suit in chancery court impleading the sum of $13,434.80. Appellee contended that it was entitled to deduct the medical payments from the $20,000 maximum contained in the uninsured motorist section of the policy. Whether that deduction, which was upheld by the chancery court, was proper is the issue on appeal.
Part II, Coverage C—Medical Payments—insured T. M. Hall and all occupants of his vehicle for medical expenses in a maximum amount of $2,000 for each person. For that coverage the insurer charged nine dollars. Part IV, Coverage G—Family Protection (Damages for Bodily Injury [uninsured motorist provisions]) carried a separate premium of $5.00 and contained this provision:
To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death, resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile;...
It is undisputed (I) that all occupants of the Hall vehicle were insureds, (2) that the limits of the policy were $10,000 for each insured and $20,000 total for each accident, and (3) that all occupants of the Hall vehicle, except Robertson, suffered total damages far in excess of tíre máximums payable under the policy.
The uninsured motorist clause contained this limitation of liability:
The Company shall not be obligated to pay under this coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II.
Our uninsured motorist law is found in Ark. Stat. Ann. § 66-4003 (Repl. 1966):
No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.
Ark. Stat. Ann. § 75-1427 (Supp. 1969), provides:
No policy or bond shall be effective under Section 26 [§ 75-1426] unless issued by an insurance com pany or surety company authorized to do business in this State, except as provided in subdivision b of this section, nor unless such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than $10,000 because of bodily injury to or death of one (1) person in any one (1) accident and subject to said limit for one (1) person, to a limit of not less than $20,000 because of bodily injury to or death of two (2) or more persons in any one (1) accident, and if the accident has resulted in injury to, or destruction of property, to a limit of not less than $5,000 because of injury to or destruction of property of others in any one (1) accident.
We take the position that the deduction for medical expenses recited in the uninsured motorist section is in derogation of the explicit requirement of our uninsured motorist statute and financial responsibility law set forth in § 66-4003 and § 75-1427, supra, which require limits of “not less than” $10,000 for injury to or death of one person and $20,000 for injury to or death of two or more persons. Although our court has not had occasion to pass on the question, it has been met squarely in other jurisdictions, as we shall now point out.
Bacchus v. Farmers Insurance Group Exchange, 475 Pac. 2d 264 (Ariz. 1970). The Arkansas and Arizona statutes on uninsured motorists are almost identical. In Bacchus the insurer reduced the amount paid under the uninsured motorist provision by the amount it had already paid under the medical payments clause. In condemning the procedure the court said:
Permitting offsets of any type would allow insurers, by contract, to alter the provisions of the statute and to escape all or part of the liability, which the Legislature intended they should provide. The medical payment coverage part of the policy is independent of the uninsured motorist coverage and should be treated the same as if it were carried with a different company.
* # *
By our statute against financially irresponsible drivers a minimum coverage must be made available to insureds, not as a convenience but rather as a Legislative mandate and in amounts of dollars and cents which leave nothing to the imagination of drafters of the insurance policies—$10,000 per person and $20,000 per occurrence. The fact that the motorist sees fit to clothe himself with other insurance protection and pays a premium therefor—such as medical payments—cannot alter the mandatory safeguards that the Legislature considers necessary for the well being of the citizen-drivers of our state. More particularly, a policy provision which the insured considers to be additional protection and for which he pays a premium with such extra protection in mind cannot be transposed by the insurer into a reduction of the mandatory minimum coverage.
Stephens v. Allied Mutual Insurance Co., 156 N. W. 2d 183 (Nebr. 1968). Again the Nebraska statutes on uninsured motorists and financial responsibility are substantially the same as ours. In Stephens the court faced the same problem which is before us. In rejecting the insurer’s attempt to use the medical payments as a set-off the court said:
The complex, if not devious, ramifications of the application of the language of this clause can be quite simply illustrated. If the plaintiff in this case had contracted for medical expense coverage in the sum of $10,000 and had suffered medical expenses in excess of this amount, the effect of the setoff clause herein involved would be to completely eliminate the uninsured motorist coverage. By its terms this provision is not in the nature of subrogation but a limitation of liability. It can be contended that not only would the insurer pay nothing under the statutory coverage, but under its policy subrogation rights it would be entitled, to the extent of its medical expense payments, to any proceeds recovered from the uninsured tort-feasor motorist.
We therefore hold that a provision in an automobile liability policy that an insurer shall not be obligated to pay under the uninsured motorist coverage for that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under the medical payments coverage of the policy is void and against public policy in that it reduces the minimum coverage of uninsured motorist protection prescribed and required by the law.
Tuggle v. Government Employees Ins. Co., 207 So. 2d 674 (Fla. 1968). Again we have the same statutes as ours. Referring to the setoff clause in the uninsured motorist section, the court said: “The clause on its face is one to decrease uninsured motorist coverage beneath the statutory minimum, and one which means that under certain conditions (medical benefits in excess of $10,000) there will be no uninsured motorist coverage whatever.”
Robey v. Northwestern Security Ins. Co., 270 F. Supp. 466 (Ark. 1967), and Boehler v. Insurance Company of North America, 290 F. Supp. 867 (Ark. 1968), dealt with the setoff provision at hand. Those cases, decided without benefit of precedent from our court, held the setoff to be proper. Of course those decisions are persuasive but not binding on us. We think the more rational conclusion is that which we have reached and that it is in line with the trend of authorities and particularly in harmony with a number of decisions which have been announced since those two cases. With the exception of the two cited district court cases we have been cited to no precedent contrary to our holding, keeping in mind the particular facts, statutes, and contractual provisions in the case at bar. Appellee cites MFA Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S. W. 2d 742 (1968), and MFA Mutual Ins. Co. v. McKinley, 245 Ark. 326, 432 S. W. 2d 484 (1968). The facts in those cases lend no precedent to the case at hand.
Reversed.
Fogleman, J., concurring. | [
-16,
124,
-40,
-81,
8,
32,
34,
-102,
117,
-63,
37,
19,
-7,
-45,
85,
39,
-81,
-67,
97,
43,
-73,
-93,
22,
-78,
-105,
-101,
-85,
-59,
-96,
-53,
127,
-2,
77,
40,
-54,
21,
102,
74,
-59,
92,
-50,
-114,
-85,
-23,
25,
-14,
52,
90,
84,
69,
113,
-49,
-22,
46,
29,
71,
44,
40,
91,
-95,
-48,
-80,
-113,
7,
127,
18,
49,
36,
-102,
-29,
90,
16,
-100,
-79,
0,
-8,
50,
-90,
82,
84,
99,
-103,
-120,
34,
102,
-95,
1,
-43,
-64,
-104,
38,
74,
47,
-121,
-126,
89,
27,
11,
-73,
29,
122,
16,
7,
124,
-4,
85,
76,
32,
3,
-114,
-106,
-95,
-27,
-16,
-36,
3,
-25,
15,
50,
117,
-118,
-14,
92,
-59,
127,
-69,
79,
-118
] |
George Rose Smith, Justice.
In July of 1969 the appellant pleaded guilty to four charges of uttering forged checks and was sentenced to eight years imprisonment upon each charge, the sentences to run concurrently. Thereafter he filed a petition for postconviction relief under Criminal Procedure Rule 1, asserting that his pleas of guilty were induced by coercion. This appeal is from the circuit court’s denial of the petition, after an evidentiary hearing.
Bradshaw testified that while he was in jail awaiting trial he was beaten and his head was shaved, on orders given by the sheriff. That testimony was disputed by the State’s witnesses, who stated that the heads of all the inmates of the jail were shaved as a measure necessary to combat an infestation of lice with which one prisoner was afflicted. According to those witnesses, the only force used was that necessary to overcome Bradshaw’s resistance. The evidence is amply sufficient to support the trial court’s finding of fact against the petitioner upon this point.
Bradshaw’s pleas of guilty were the result of negotiations between his attorney and the prosecuting attorney’s office. See Cross v. State, 248 Ark. 553, 452 S. W. 2d 854 (1970). The State first tried to persuade Bradshaw to accept a sentence of twenty years, but he refused. Eventually the parties agreed upon a recommended sentence of eight years, which the court imposed.
Bradshaw now contends that his pleas were coerced, because during the negotiations the deputy prosecuting attorney made the statement that he could obtain a sentence of 47 years under the habitual criminal statute. We find no proof of coercion. Bradshaw admittedly had four previous felony convictions; so under the habitual criminal act he could have been sentenced to as much as one and a half times the maximum penalty for each offense. Ark. Stat. Ann. § 43-2328 (Supp. 1969). Since the maximum sentence for uttering a forged check is ten years, Ark. Stat. Ann. § 41-1805 (Repl. 1964), Bradshaw could have received a sentence of fifteen years upon each charge, or a total of sixty years imprisonment, That a plea of guilty is induced by the possibility of the prisoner’s receiving a more severe sentence does not establish coercion. Brady v. United States, 397 U. S. 742 (1970). Moreover, it must be borne in mind that the parties were negotiating. Some reference to the possible minimum and maximum sentences is obviously pertinent, perhaps even essential, to the negotiating process; so it cannot reasonably be said that such a reference is coercive.
The appellant also complains that he was unable to make a bond in the amount set by the court, and consequently he was held in jail for nine months before he pleaded guilty and was sentenced. If the amount of the bond was unreasonable that issue could have been reviewed in this court. Parnell v. State, 206 Ark. 652, 176 S. W. 2d 902 (1944); Ex parte Osborn, 24 Ark. 185 (1866). Furthermore, there is no proof in the present record that the bond was fixed in an amount that was excessive in the circumstances.
Bradshaw also complains of the fact that the officers took $505 that he had when he was arrested and returned it to the persons who had been defrauded. Bradshaw testified, however, that he had defrauded the persons and wanted to give the money back to them; so he is not in a position to complain about his wishes having been carried out. We are not impressed by the implied suggestion that a thief has a constitutional right to use the stolen funds to make bail when he is charged with the offense.
No error appearing, the judgment is affirmed.
Fogleman, J., not participating. | [
48,
-22,
-4,
-66,
10,
-63,
58,
24,
-46,
-93,
-12,
83,
-19,
68,
5,
41,
-69,
127,
81,
105,
74,
-78,
55,
81,
-30,
-13,
121,
-43,
-67,
79,
-68,
-44,
12,
96,
-48,
93,
38,
-54,
-57,
88,
-114,
1,
-96,
109,
16,
81,
112,
107,
-124,
15,
49,
-98,
-29,
42,
16,
-50,
73,
108,
91,
-72,
-40,
-87,
-102,
77,
111,
52,
-93,
4,
-100,
7,
112,
46,
-100,
17,
-127,
-8,
115,
-74,
-126,
84,
77,
9,
12,
98,
98,
33,
-43,
76,
56,
-51,
62,
54,
-99,
-90,
-48,
88,
66,
37,
-114,
-100,
34,
20,
46,
-4,
115,
12,
117,
104,
-86,
-49,
-76,
-77,
13,
124,
-106,
59,
-29,
45,
-128,
113,
-49,
-26,
92,
87,
121,
-101,
-114,
-16
] |
Carleton Harris, Chief Justice.
This litigation relates to who is the owner of Lot Nine of Paul’s Addition to the town of Grady, Arkansas. In September, 1946, a warranty deed was given from Sam Bass and wife to Ira McGill and Katie McGill to land described as Lot Nine in Block Three of Paul’s Addition to the town of Grady. In November, 1951, Lem Mosley and wife conveyed by warranty deed to Charlie Brooks, appellant herein, land described as Lots Five and Eight in Block Three of Paul’s Addition to the town of Grady. In 1968, Katie McGill, appellee herein, obtained a deed from Southeast Arkansas Levee District for Lot Twelve, Block Three of Paul’s Addition to the town of Grady. Appellee’s residence is located on this lot; also, in this same year, she obtained a deed from the State of Arkansas for Lot Twelve Block Three of Paul’s Addition to the town of Grady. Accordingly, though Mrs. McGill, together with her husband, had received a deed in 1946 to Lot Nine, she actually placed her house on Lot Twelve, thinking it was Lot Nine. Appellee testified that she did not know when she discovered that her home was actually on Lot Twelve; as noted, she did acquire the two deeds heretofore referred to in 1968. In August, 1969, Mrs. McGill instituted suit in the Lincoln County Chancery Court against Brooks alleging that nine months previously, Brooks had entered on her property without her consent, permission, or approval, had stacked lumber on the premises and had interfered with her enjoyment and use of the premises. It was contended that Brooks was financially irresponsible; that an action for damages would be of no value; that she had no adequate remedy at law, and she prayed the Chancery Court, in addition to seeking $5,000 damages for appellant’s unauthorized entry, use and occupation of the property, to restrain Brooks from coming upon any part thereof. Appellant filed a motion to dismiss the complaint, asserting that he was in possession of the land referred to, and had been for twenty years; that he had planted a garden thereon and used it for many years, and was the owner of the land; further, that the action was purely an ejectment action, and the proper remedy would be a suit in ejectment in the Circuit Court of Lincoln County. This motion was denied, and Brooks filed an answer setting out more fully his acts of possession; he also renewed his motion that the complaint be dismissed, or in the alternative, that the cause be transferred to the Circuit Court of Lincoln County. The court overruled the motion, and •the cause proceeded to trial, the court entering a decree for appellee at the conclusion thereof. Three points are relied upon for reversal, but since we agree that the trial court erred in refusing to transfer the case to Circuit Court, there is no need to discuss the other points relied upon.
It is clear from the record that Brooks was in possession of Lot Nine at the time this suit was filed; in fact, the complaint itself asserts that he had been in possession for nine months. This being true, we cannot examine further the evidence heard by the chancellor, for the motion to transfer should have been granted. In Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175, this court said:
“In the present case the plaintiff claims under a legal title, and the defendant is in possession of the land claiming to hold adversely to the plaintiff and to all other persons. The plaintiff claiming under a legal title and the defendant being in possession, the plaintiff had a full and complete remedy at law, and chancery had no jurisdiction in the premises.”
See also Jackson v. Frazier, 175 Ark. 421, 299 S. W. 738, and cases cited therein.
The same situation exists in the case before us.
Reversed and remanded, with directions to transfer to the Lincoln County Circuit Court. | [
-16,
108,
-24,
109,
27,
-32,
10,
-102,
104,
-95,
-16,
83,
-19,
-59,
4,
97,
-23,
-19,
-11,
-7,
-25,
-77,
3,
84,
48,
-69,
-87,
71,
-76,
-39,
-11,
-57,
76,
37,
74,
85,
-58,
-62,
-51,
-100,
30,
-126,
11,
68,
89,
66,
48,
63,
20,
15,
113,
-97,
-10,
40,
53,
79,
45,
44,
-39,
44,
80,
-6,
-117,
13,
127,
19,
33,
-27,
-118,
1,
104,
110,
-112,
49,
-128,
-24,
115,
-90,
-122,
116,
69,
-101,
8,
32,
98,
2,
-19,
-17,
-120,
-119,
15,
119,
45,
-90,
-106,
9,
75,
72,
-65,
-99,
120,
84,
68,
-14,
101,
-123,
28,
44,
-81,
-82,
-44,
-91,
12,
-72,
-100,
3,
-53,
15,
-80,
117,
-49,
-18,
89,
67,
57,
-101,
-114,
-15
] |
J. Fred Jones, Justice.
This is an appeal by Mrs. S. Fenton Smith, individually, and as administratrix of the estate of her deceased husband Lloyd E. Smith, from a directed verdict in favor of George Hankins and Milton Moore in the Searcy County Circuit Court wherein Mrs. Smith had filed a wrongful death action against Hankins and Moore. We conclude that the trial court did not err in directing a verdict for the appellees-defendants.
The collision out of which this litigation arose occurred on Cantrell Road in Little Rock on June 12, 1970. The decedent, Lloyd Smith, was riding in the rear seat of an automobile being driven by his sister-in-law, Mrs. Joe Mays, in a westerly direction on Cantrell Road, and Milton Moore, an employee of George Hankins, was driving a loaded milk truck in an easterly direction on the same road. As the two vehicles ap proached each other at a curve, the Mays’ vehicle, in which Smith was riding, skidded out of control and across the highway into the path of the oncoming truck driven by Moore.
The only evidence offered at the trial as to how the accident occurred, consisted of testimony given by and photographs made under the directions of the investigating police officer, S. R. McKinney, and the deposition of the milk truck driver, Milton Moore. The photographs offered in evidence clearly reveal very heavy damage to the entire front and left side of the Mays vehicle, with considerably less, but extensive, damage to the left front of the milk truck. The photographs as well as the testimony reveal that where the impact occurred, Cantrell Road is a four lane thoroughfare with a double stripe painted between the east and westbound traffic lanes and with a single white stripe separating the two westbound traffic lanes and also a single white stripe separating the two eastbound traffic lanes. The curve in which the collision occurred is upgrade and bears to the north for the westbound traffic and is downgrade for eastbound traffic.
Police Officer S. R. McKinney testified that the collision occurred about 6:55 a.m. and that the weather was cloudy and damp. He testified that the collision occurred on the center line between the two eastbound traffic lanes, and that there was no evidence that the eastbound truck was ever on the wrong side of the four lane highway. Officer McKinney testified that when he reached the scene of the collision, he found debris on the pavement on the center line between the eastbound lanes and about nine feet from the east curb on Cantrell Road. He says the milk truck was sitting at an angle across the division line of the eastbound lanes with its right front wheel within about five feet of the curb. He says the entire highway at this point is about 45 feet wide. Officer McKinney testified that the pavement at the time was wet and that he found no skid marks behind either vehicle. He testified that the blacktop pavement at this point is very slick when wet.
Mr. Milton Moore testified by deposition that he was driving his employer’s milk truck generally east down Cantrell hill in Little Rock; that it had been raining and the pavement was wet. He testified that he was driving 20 to 25 miles an hour and that he first observed the Mays vehicle when it was 50 or 40 yards from him. He testified that when he first saw the Mays vehicle it was on its proper side of the four lane highway, but that in attempting to negotiate the curve the automobile did not respond; that he saw the automobile “turn up sideways and then it started sliding, started slipping sideways across the road.” He testified that he was driving under 20 miles an hour when the collision occurred. Mr. Moore then testified as follows:
“Q. You applied your brakes, I assume?
A. I already had my foot on the brake; and was holding the truck back with the brakes.
Q. Did you skid this full distance until you all collided?
A. No, I don’t know whether I did or not, really.
Q. Traveling at 25 miles an hour, how long would it take you to stop that truck?
A. It would depend on the condition of the road.
Q. On that particular date, were you not able to stop it within 120 feet?
A. No, I wasn’t.
Q. You were not able to stop it within 120 feet?
A. No, I wasn’t completely stopped.
Q. As I understand it, you were not able to stop this truck within 120 feet on this particular date because of the wet streets, is that correct?
A. Yes.
Q. If you said at that time you saw the Mays vehicle when it was 50 yards away and it started to cross the road in front of you, you wouldn’t dispute that now, would you?
A. No.
Q. As you are coming down Cantrell hill there, there are quite a few speed limit signs and curve signs there, aren’t there?
A. Yes, there are.
Q. As a matter of fact within 20 or 30 yards of where this accident happened there is a big curve sign with a speed limit of 25 miles an hour, is there not?
A. Yes, there is.”
Mr. Moore testified that the truck as well as the automobile sustained heavy damage. He says that the Mays vehicle was demolished; that both doors of his truck were jammed; that the windshield was broken and that he had to climb through the broken windshield in getting out of the truck. He says that he had approximately 5,000 pounds of milk on his truck; that after he saw the automobile cross the center line and go into a skid, he tried to completely stop his truck but was unable to do so. He says that he had his foot on the brake and had been holding the truck back with the brake; that he thinks he applied more pressure when he saw the automobile skid towards him, but in the short time involved he is not sure whether he applied more pressure on the brakes or not.
On redirect examination Mr. Moore testified that the Mays vehicle was traveling probably 50 miles an hour when he first observed it and that he was probably 30 yards from it when it started skidding across to his side of the highway. He says that when he saw the automobile coming to his side of the highway, he immediately applied his brakes and started cutting to his right. He testified that he is not sure whether the automobile turned sideways or not because it happened so fast, but that he knew it was skidding. He testified that his truck was at a slight angle to his right when the collision occurred and that the automobile slid straight into his truck.
The other evidence submitted in the case had to do with the elements of damage and is not germane to the issue on this appeal. In granting the motion for a directed verdict, the court first took the motion under advisement and his reasoning is set out as follows:
“THE COURT: The Court understands there is no attempt to prove, as far as the Plaintiff is concerned, who was the more negligent. The question is, is there any negligence, and of course, the question the Court has more trouble with than that is probable cause. Assuming that the actions of the defendant could be interpreted by the jury as being some negligence, was it the proximate cause. * * *”
We agree with the trial court that if the jury could have found any negligence at all on the part of Moore in the operation of his truck, the record would still be void of any evidence of causal connection between any negligence that could have been attributed to Moore and the collision resulting in the death of Mr. Smith.
The facts in the case at bar are very similar to those encountered in the case of Steinberg v. Ray, 236 Ark. 569, 367 S. W. 2d 445. In that case the McCarty and Steinberg automobiles collided on Highway 67 with the Steinberg automobile traveling north and the McCarty automobile traveling south. McCarty’s wife was killed in the collision and both McCarty and his wife’s estate sued and obtained judgments against Steinberg. Steinberg, as did Moore in the case at bar, testified that he first noticed the McCarty automobile in its proper or southbound lane as it was meeting him and that McCarty pulled from his southbound lane across and into the northbound lane in front of him, whereupon he, Stein-berg, applied his brakes and swerved to his right in an unsuccessful effort to avoid the collision. According to the physical facts the Steinberg vehicle left 90 feet of skid marks leading up the point of impact, and both vehicles came to rest in the northbound lane. The trial court overruled Steinberg’s motion for a directed verdict and upon appeal by Steinberg to this court, in reversing the judgment, we said:
“According to the evidence in this case there is no proof of facts, nor can any reasonable inferences be drawn from the evidence, that establishes any substantial evidence that the appellant, Steinberg, was negligent or that any negligence on his part was the proximate cause of this collision resulting in injuries to the appellees.”
The judgment is affirmed. | [
-16,
108,
-32,
-52,
11,
-64,
10,
10,
-47,
-119,
-11,
83,
-89,
79,
93,
115,
-29,
29,
85,
41,
-9,
-77,
87,
-78,
-110,
-109,
107,
-49,
-110,
-55,
108,
-9,
76,
48,
78,
77,
102,
-56,
-49,
88,
-50,
-112,
-23,
-12,
89,
18,
48,
42,
-10,
15,
-31,
-114,
-58,
47,
24,
71,
109,
44,
89,
44,
-63,
113,
-60,
7,
-1,
22,
49,
-60,
-98,
-115,
88,
26,
-40,
49,
32,
120,
50,
-90,
-109,
-44,
105,
-103,
12,
-96,
119,
0,
5,
-19,
-84,
-104,
7,
-2,
13,
-122,
46,
49,
75,
2,
-65,
-107,
123,
80,
10,
-6,
-2,
69,
89,
40,
-91,
-54,
-74,
-79,
-57,
49,
-108,
27,
-21,
-123,
54,
113,
-55,
-14,
93,
69,
81,
-101,
71,
-110
] |
John A. Fogleman, Justice.
Joe McKim alleges that the chancery court erred in sustaining general demurrers of Butane Service, Inc. and Jane Sutherland McLiney, et al, Trustees, to his amended complaint, which the court dismissed. We agree.
McKim alleged that he was the owner of the lands described in his complaint, and that he acquired his equity, ownership, title and interest in and to the foregoing lands by the following:
1. L-P Gas Company Warranty Deed to Joe McKim dated August 5, 1963, and filed for record August 6, 1963.
2. Quitclaim Deed from Cy Carney Et Ux to L-P Gas Company, dated April 16, 1970.
3. Purchase by Cy Carney of the entire assets of Butane Service Co., Inc. of Springdale, Arkansas on November 8, 1947, as reflected by contract exhibited.
4. Sam Ennis and Sylvia Ennis, husband and wife, Warranty Deed to Butane Service Co. of Spring-dale, Arkansas, dated April 8, 1946, and filed for record on April 20, 1946.
McKim further alleged that Jane Sutherland Mc-Liney, et al, as Trustees for certain named persons were making an apparent claim of title and possession by reason of a recorded quitclaim deed from L. R. and Ethel Mae Bennett to John W. Sutherland, dated March 23, 1967, and Sutherland’s recorded deed of gift, dated January 19, 1970, conveying the lands to Jane Sutherland McLiney, et al, as Trustees for Thomas M. Sutherland, Mark B. Sutherland and Christopher L. Sutherland. (These appellees will hereinafter be referred to as the Sutherland trustees.)
McKim then alleged that he and his predecessors in title had been the sole and exclusive owners of the above described lands (which he alleged to be “wild”), in actual or constructive possession (except for such part as may have been entered upon by John W. Sutherland during the preceding 3-year period), for more than 25 years prior to the filing of his amended complaint, during which time they had continually paid the taxes thereon. Appellant asserted that Butane Service Company, Inc. might claim some interest in the land because of its failure to execute a conveyance pursuant to its contract with Carney. McKim further alleged that he had no adequate remedy at law to establish his equitable title or interest, to quiet or confirm his title, to revoke or cancel clouds thereon, or to establish a trust implied in law for his benefit. He prayed that any claim of Butane Service be declared subservient to his own and held subject to a trust in law for his use and benefit, and that this appellee be compelled to convey whatever title it had to him. He also prayed that the conveyances under which the Sutherland trustees claimed be canceled as clouds upon his title and that his title be quieted and confirmed.
Perhaps appellant’s pleadings in many respects should have been more specific, but, under our code, pleadings are liberally construed and every reasonable intendment indulged in behalf of the pleader. Craft v. Armstrong, 200 Ark. 681, 141 S. W. 2d 39. Particular liberality is accorded the pleader on demurrer. If the facts stated in the pleadings together with every reasonable inference which may be drawn therefrom favorable to the pleader constitute the substance of a cause of ac tion imperfectly stated, a demurrer should be overruled. Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S. W. 2d 46. When we apply these standards, we conclude that appellant stated a cause of action against both appellees.
THE DEMURRER OF BUTANE SERVICE, INC.
We agree with this appellee that the lands are not sufficiently described in the contract of sale between it and Carney to entitle McKim to have specific performance of the contract, absent other circumstances making that relief available. The only description in the contract which relates, in any way, to real estate is the statement of the agreement of Butane Service to sell and of Carney to buy “all the assets of whatever kind and nature of Butane Service, Inc., an Arkansas Corporation, except accounts receivable, this sale including all equipment and property as well as inventory of merchandise, which equipment and property is more specifically listed in Schedule A. attached hereto and made a part hereof.” The schedule was not exhibited. We do not agree with Butane Service, however, that the contract did not relate to real estate. One clause in the contract calls upon the sellers to execute all necessary and proper deeds and other instruments required by the purchaser in order to execute this contract to the buyer’s requirements. Other actions by the sellers were to be performed at the time of the delivery of the deeds and other documents to complete the sale. Another clause required the sellers to prepare all necessary deeds and other instruments within 15 days of the date of contract and to tender them to the buyer “with possession of all said property of sellers, at which time said purchase price will be paid by buyer.” The buyer was given the option of using the name, Butane Service, Inc., or Co. or Company or any similar combination. From the language of the contract, a construction that the parties intended to include any real estate owned by the seller as part of “all the assets of whatever kind and nature” would certainly not be unreasonable. Even so, we have held that similar descriptions are not sufficiently definite and certain to furnish an adequate key to identification to form the basis for specific performance. Bowlin v. Keifer, 246 Ark. 693, 440 S. W. 2d 232; Turrentine v. Thompson, 193 Ark. 253, 99 S. W. 2d 585.
This does not mean that there are not any circumstances under which a conveyance by Butane Service can be compelled. Even though a written contract is defective because of an insufficient description of property, it will still be specifically enforced in equity if it is established that the case is taken out of the statute of frauds and evidence supplies proof of the proper description. Hirschman v. Forehand, 114 Ark. 436, 170 S. W. 98. See also Stephens v. Ledgerwood, 216 Ark. 404, 226 S. W. 2d 587. Thus, if under the allegations of his complaint, appellant can show that the real estate described in his complaint was an asset of Butane Service subject to transfer under the contract with Carney, and produce evidence to take the case out of the statute of frauds, he might well prevail.
The fact that McKim’s title is based entirely upon a quitclaim deed executed by Carney dated April 16, 1970, does not constitute an impediment to McKim’s enforcement of whatever rights Carney may have had against Butane Service. McKim’s deed from L-P Gas Co., the grantee in Carney’s quitclaim, was a warranty deed. A contract of sale of real estate creates an equitable estate in the purchaser which is alienable by deed, subject to the lien of the vendor to secure the purchase money. Roach v. Richardson, 84 Ark. 37, 104 S. W. 538; Whittington v. Simmons, 32 Ark. 377. This equitable estate is assignable or transferable, at least in equity, by quitclaim deed. Corcorren v. Sharum, 141 Ark. 572, 217 S. W. 803. See also Whittington v. Simmons, supra; Lucado v. A. Hirsch & Co., 203 Ark. 792, 158 S. W. 2d 697.
The vendor of real estate becomes a constructive trustee for the purchaser holding the naked legal title, which he or his heirs must convey to the purchaser upon payment of the purchase price. Stubbs v. Pitts, 84 Ark. 160, 104 S. W. 1110; State Bank of Decatur v. Sanders, 114 Ark. 440, 170 S. W. 86; Whittington v. Simmons, supra; Harris v. King, 16 Ark. 122; Arledge v. Rooks, 22 Ark. 427. Partial or full payment of consideration to gether with the taking of possession by the purchaser, however, is sufficient. Marshall v. McCray, 241 Ark. 184, 406 S. W. 2d 863; Hyder v. Newcomb, 236 Ark. 231, 365 S. W. 2d 271; Ferguson v. C. H. Triplett Co., 199 Ark. 546, 134 S. W. 2d 538. Consideration paid by forgiveness of a debt of the seller to the purchaser, the surrender of dominion over the property by the seller to the purchaser and subsequent payments of taxes and other exercise of acts of ownership of lands have been held sufficient. Bostleman v. Henkle, 152 Ark. 628, 239 S. W. 30. Payment of consideration by cancellation of a debt of a seller to a purchaser followed by his continued payment of taxes on the property has also been held sufficient to take the case out of the statute of frauds. Henneberger v. Duncan, 204 Ark. 4, 161 S. W. 2d 380.
McKim does not allege the specific acts which he claims constituted the actual or constructive possession of the lands by him and his predecessors in title, except for continuous payment of taxes. We take his allegations to be sufficient to permit introduction of evidence as to payment of taxes or any other acts of McKim or his predecessors in title indicating dominion and control or the exercise of ownership by him or his predecessors in title or the transfer of possession and dominion by appellee Butane Service to his predecessors in title. Such evidence, coupled with a showing of payment of the consideration called for by the contract, might well constitute sufficient part performance of the contract to take it out of the application of the statute of frauds and to warrant requiring Butane Service, Inc. to convey the title to the lands.
In this connection, the provisions of Ark. Stat. Ann. §§ 37-102 and 37-103 (Repl. 1962), relied upon by appellant, may come into play. Under the former section, possession of unimproved and unoccupied lands is deemed to be in one who, with color of title, pays the taxes for at least seven years in succession. Under the latter, color of title is presumed where there has been payment for 15 years. See Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 209 S. W. 2d 685; Coulter v. O’Kelly, 226 Ark. 836, 295 S. W. 2d 753. For the purposes of these acts, appellant’s allegation that the lands are wild would normally bring them within the purview of these acts. We have acknowledged that the words “wild,” “unimproved” and “unenclosed” have been used interchangeably. Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193. These statutes are not applicable, however, where two or more have adverse constructive possession. Towson v. Denson, 74 Ark. 302, 86 S. W. 661. Constructive possession of wild and unimproved lands is usually deemed to be in the holder of the legal title. Hensley v. Phillips, 215 Ark. 543, 221 S. W. 2d 412. But where neither party has actual possession, constructive possession is deemed to be in the holder of the superior title. Nall v. Phillips, 213 Ark. 92, 210 S. W. 2d 806. This rule applies where the lands are wild and unimproved unless the holder of the inferior title has continuously paid the taxes for the statutory period. Smith v. Boynton Land & Lumber Co., 131 Ark. 22, 198 S. W. 107.
Appellee Butane Service, Inc. contends that the passage of time bars enforcement of its contract with Carney. This well may be the case, but the defenses of laches and the statute of limitations can be raised by demurrer only when they appear upon the face of the complaint. Quinn v. Stuckey, 229 Ark. 956, 319 S. W. 2d 839; Morehead v. Niven, 222 Ark. 116, 257 S. W. 2d 361. Otherwise, both defenses must be raised by answer. Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835. When we consider appellant’s amended complaint with the exhibits thereto, we find nothing to indicate that the statute of limitations has run. The time for performance is not fixed with sufficient definiteness for a bar by limitations to appear upon the face of the pleadings.
Laches depends upon more than mere lapse of time. It is delay that works to the disadvantage of another by change of circumstances or relations of the parties or loss of evidence and makes the enforcement of a claim inequitable. Stricklin v. Mitchell, 234 Ark. 31, 350 S. W. 2d 319; Seawood v. Ozan Lumber Co., 221 Ark. 196, 252 S. W. 2d 829; Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749; Cullins v. Webb, supra; Walker v. Norton, 199 Ark. 593, 135 S. W. 2d 315. No such change appears upon the face of the pleadings.
DEMURRER OF SUTHERLAND TRUSTEES
We take McKim’s complaint in this regard to state a cause of action to cancel certain instruments of record which constitute a cloud on the title he claims. In Arkansas, the chancery court has jurisdiction of such a proceeding both under statute and in the exercise of its inherent equity powers. See Covington, Bills to Remove Cloud on Title and Quieting Title in Arkansas, 6 Ark. L. Rev. 83, et seq. Such a suit may be brought by the holder of an equitable title. Bowling v. Stough, 101 Ark. 398, 142 S. W. 512; Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278. While there are cases holding that a plaintiff must be in possession in order to cancel a cloud on his title, or that he must be the holder of the legal title, jurisdiction will be exercised in equity where neither party is in possession or where the remedy at law is not adequate. Reynolds v. Plants, 196 Ark. 116, 116 S. W. 2d 350; Fisk v. Magness, 193 Ark. 231, 98 S. W. 2d 958; Chapman and Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. 534, appeal dismissed, 206 U. S. 41, 27 S. Ct. 679, 51 L. Ed. 953. Holdings in this regard are perhaps best summarized in Rowe v. Allison, 87 Ark. 206, 112 S. W. 395, where we said:
Before a suit to remove cloud from title can be sustained by a plaintiff, he must show that he is in possession of the land, or that his title is an equitable one, or that the land is wild and unoccupied. Where a defendant is in possession, and the plaintiff asserts a legal title, a chancery court is without jurisdiction to remove the cloud upon it, as there is an adequate and complete remedy at law. But if other grounds for equity jurisdiction exist, which give the chancery court jurisdiction, it may proceed to administer complete relief, although a part of that relief is purely legal. Apperson & Co. v. Ford, 23 Ark. 746; Branch v. Mitchell, 24 Ark. 431; Sale v. McLean, 29 Ark. 612; Lawrence v. Zimpleman, 37 Ark. 643; Bryan v. Winburn, 43 Ark. 28; Mathews v. Marks, 44 Ark. 436; Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058; Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Brown v. Nowell, 74 Ark. 484, 86 S. W. 306; St. L. R. & W. G. Co. v. Thornton, 74 Ark. 383, 86 S. W. 852; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. 534.
Appellant had no adequate remedy at law because it is well established that an equitable title is generally not sufficient to maintain ejectment. McCord v. Welch, 105 Ark. 119, 150 S. W. 566; Scott v. Rutherford, 243 Ark. 306, 419 S. W. 2d 595. Of course, an equitable title coupled with the right to possession would support an action in ejectment. Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568. It may well be that evidence will show that McKim is entitled to possession so that he might have brought an ejectment suit, but the chancery court denied his motion to transfer to law after his demurrer was overruled, on the ground that McKim’s allegations and prayer embraced an action cognizable only in equity and did not state a cause of action at law. We cannot say that on the face of the complaint he is not entitled to the equitable remedy to cancel the cloud on his title.
We have not overlooked such cases as Winkle v. School District No. 81, 215 Ark. 670, 221 S. W. 2d 884 and Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175. They are not applicable here, because the plaintiff in each case had a plain, adequate and complete remedy at law as the claimant under a legal, rather than an equitable, title.
Appellee asserts that McKim’s allegations with reference to possession are contradictory in that he claims actual possession in himself and his predecessors in title, then alleges that appellees are in possession of the lands, and later alleges that they are wild. It may be that there is some inconsistency, but we must consider the complaint on demurrer in a light favorable to the pleader. When we do, we cannot say that appellant has failed to state a cause of action.
It is true that McKim did not deraign his title to the sovereignty of the soil or to a common source of title. In an action to quiet title such as this one, it is necessary that there be such deraignment or allegations showing title in him or his predecessors in title by adverse possession or by payment of taxes. See Coulter v. O’Kelly, 226 Ark. 836, 295 S. W. 2d 753; Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777; Collins v. Heitman, 225 Ark. 666, 284 S. W. 2d 628. If McKim is relying upon adverse possession his allegations appear to be sufficient. If not, the defect is not one that is reached by a demurrer but is properly subject to a motion to require his complaint to be made more definite and certain. However loosely drawn a complaint in equity may be, there is no ground for demurrer if a cause of action is stated, however defectively, when every allegation and every inference reasonably deducible therefrom are considered. Shreve v. Carter, 177 Ark. 815, 8 S. W. 2d 443. Any lack of specificity or other defect should be reached, at least in equity, by a motion to make the complaint more definite and certain. Ford v. Collison, 128 Ark. 119, 193 S. W. 531; Shreve v. Carter, supra. The rule is different in an action in ejectment, because of statutory requirement. Ark. Stat. Ann. § 34-1408 (Repl. 1962); Scott v. Rutherford, 243 Ark. 306, 419 S. W. 2d 595.
Since we find that the complaint states a cause of action when tested on demurrer, the decree is reversed and the cause remanded for further proceedings. | [
112,
108,
-24,
-50,
-88,
96,
40,
-117,
106,
-79,
-91,
83,
-81,
-62,
13,
105,
-29,
29,
-59,
122,
-57,
-93,
66,
99,
86,
-109,
-39,
-43,
-80,
93,
-12,
-41,
76,
40,
74,
23,
-62,
-54,
-49,
-36,
-114,
33,
59,
104,
-39,
0,
52,
59,
48,
79,
113,
30,
-30,
41,
25,
75,
104,
46,
127,
44,
-39,
-72,
-86,
-115,
31,
54,
0,
6,
-100,
-123,
-56,
10,
-112,
48,
-104,
-24,
123,
-90,
-122,
-28,
9,
-97,
8,
34,
-29,
42,
5,
-17,
-84,
-72,
14,
-97,
29,
-92,
96,
120,
107,
96,
-105,
28,
112,
0,
-123,
118,
-18,
21,
93,
108,
27,
-82,
-42,
-79,
5,
120,
-100,
17,
-21,
39,
52,
80,
-51,
-26,
92,
71,
62,
31,
-114,
-80
] |
Lyle Brown, Justice.
Solomon Feldman, Jr., appellant, made application to the Arkansas State Board of Examiners, appellee, to write the examination scheduled for March 1971. The application was denied. Appellant contends that the action of the board violates constitutionally secured rights; that such action is in conflict with a rule of this court governing admission to the bar; and that the petitioner was not informed of the rule change which would cut off his right to take the examination.
Appellant is a 1965 graduate of the Arkansas Law School. The night school graduated its last class in 1967 and thereafter ceased to operate. In 1968 the board of examiners took cognizance of the fact that an unusual number of the graduates of the school had lately failed the examinations. On July 27, 1968, the board of examiners terminated its approval of the school. That action was pursuant to our Rule XII, which says that a candidate for the bar must be a graduate of a law school approved by the American Bar Association or by the State Board of Law Examiners. (The night school was not on the approved list of the American Bar.) In order not to abruptly withdraw the right of the night school graduates to take the examination, the board made the termination of the school effective after the July 1970 examination. Consequently the graduates were allowed four more opportunities to take the examination, they being given twice a year.
Appellant has twice written the examination and failed—July 1969 and March 1970. He did not offer himself for examination in July 1970. The following month he made application to write the examination to be given in March 1971, and the denial of that application is the basis of this litigation. It should be noted that five years elapsed between appellant’s graduation and the cutoff date. During that period the examination was given ten times.
Appellant contends that the rule as applied to grad uates of Arkansas Law School is unconstitutionally retrospective and violates the equal protection clauses of the Federal and State Constitutions. "Previous to the ruling of the Board, the petitioner had the right to take the examination again. That was a vested right which was divested upon the application of the present rule.” Also, petitioner says: "The law as applied by the State Board discriminates against those persons acquiring a degree from the old Arkansas Law School, while it does not work against any other candidate for admission to the bar.”
If the action of the board in removing Arkansas Law School from the approved list was not "invidiously discriminatory,” and if the action had a “rational connection” with the fitness of a certain class of persons to practice law, then the board did not offend against the due process or equal protection clause of the Fourteenth Amendment. Schware v. Board of Bar Examiners, 553 U. S. 232 (1957). The same authority recognizes the power of the states to set high standards of qualifications for the practice of law, just so long as they do not contravene the recited nondiscriminatory and rational connection rules above stated.
We think the action of the board conformed to the principles recited in Schware. The board decided that the academic standards of the school had so declined that an unusual number of the graduates were failing bar examinations; consequently it was thought to be to the best interest of the public and the profession that the school be removed from the approved list. In order to avoid hardship which might appear to be discriminatory, the removal of the school was set up to a future date which would give any graduate who had not taken or passed the bar examination a period of two years (four examination dates) in which to write the examination. It will be remembered that the appellant graduated in 1965; thus a period of five years lapsed before the cutoff date. It would not be illogical to conclude that a 1965 graduate who did not pass the examination in the five year period would not have retained the scholastic attributes needed to succeed in the profession.
Appellant classifies the 1968 action of the board as retrospective. He says he had a vested right to take the examination and that the board’s ruling divested him of that right which he acquired at the time of his graduation. As we have previously pointed out, the board’s action was made to work prospectively. Appellant was given four more opportunities to write the examination. He exercised that privilege on two occasions but for reasons unexplained he did not present himself for examination on either of the other two dates. The authority of the board to approve schools necessarily carried with it the power to revoke approval. When such revocation carries with it a proviso which reasonably protects students who entered the school at the time it was on the approved list, the action of the board has been upheld. Blodgett, State’s Attorney ex rel Bazil v. Boardman, 18 A. 2d 570 (Conn. 1941).
Appellant contends that the rule which eliminated Arkansas Law School from the approved list is contrary to our rules promulgated by constitutional authority. Amend. 28, Ark. Constitution. He points out that this court has made the rule that an applicant has the right to take the bar examination a total of four times and after that only by special permission. Appellant argues that “The State Board of Law Examiners now say that any applicant formerly from the old Arkansas Law School cannot take the examination after July 1970.” Appellant overlooks the fact that the right to take an examination is vested only in those who are graduates of a law school approved by the board or by the American Bar Association.
We come to the last point advanced by appellant. He says he was never informed of the new rule regarding the eligibility of Arkansas Law School graduates to take the examination. Here is the rule adopted in July 1968: “A discussion was had concerning the termination of the approval of Arkansas Law School. It was duly moved by Mr. Leflar and seconded by Mr. Hyatt that the approval of the Arkansas Law School terminate with the July 1970 examination.” The motion, which was unanimously passed, is the only action taken by the board with reference to the termination of approval of the school or the right of the school’s graduates to write the examination. Clearly, of course, the purpose of the rule was to terminate the right, on the cutoff date, of a night school graduate to thereafter write the examination.
Appellant was his only witness before the board. He testified that the secretary gave him two information sheets concerning bar rules; that he had a conversation with Herman Hamilton when the latter was chairman of the board; that he conversed with Ray Thornton when he was board chairman; that he talked with board member Steele Hays; that he had several conversations with the secretary of the board; and that Mr. Hamilton expressed the opinion that he was not cut off from taking the examination. Appellant testified that at no time was he advised of the 1968 rule and he insisted that had he been so advised he would have taken the July 1970 examination. His evidence of the recited contacts was not contradicted. Our problem stems from the fact that we cannot tell from the record when those contacts were made (if in fact some or all of them were made). The point is, if this applicant made timely contact with one or more officers of the board and discussed with them (as he says he did) the subject of his writing the examination, he was entitled to be informed of the deadline imposed by the rule for his taking the examination. Unfortunately, the 1968 rule was never published. The last rules governing admission to the bar were published in 1963. The only archive in which the cutoff rule is to be found is in the minutes of the bar examining committee. (The responsibility for publishing the rules rests with this court; had we timely met that obligation the problem might not now be before us.)
We could say that the burden of establishing the dates of his contacts was on appellant, and affirm. However, since the committee is a creature of this court we prefer to avoid such a minor technicality and give the applicant the benefit of every doubt, just so our action does not offend basic law.
Upon request being made by appellant the board shall set a hearing date, at which the single issue of lack of notice will be explored.
Reversed.
Fogleman, J., not participating. | [
52,
-21,
-35,
52,
-117,
64,
62,
-98,
81,
-117,
39,
83,
-83,
-37,
20,
105,
-45,
45,
112,
122,
-34,
-74,
23,
72,
66,
-33,
-38,
-47,
-80,
-17,
-12,
-65,
76,
104,
-62,
-43,
70,
-56,
-55,
88,
-118,
6,
25,
76,
-39,
-47,
56,
50,
102,
15,
53,
-97,
-29,
-84,
25,
-61,
-52,
44,
-47,
-84,
64,
-71,
26,
15,
125,
4,
-79,
55,
-102,
-123,
88,
126,
28,
49,
1,
-24,
114,
-90,
-122,
100,
5,
-103,
-116,
98,
102,
-119,
41,
-25,
-104,
-119,
78,
50,
45,
-122,
-109,
108,
75,
9,
-98,
-67,
124,
80,
7,
126,
103,
84,
28,
44,
12,
78,
-16,
-79,
73,
-83,
-124,
9,
-21,
-29,
-112,
117,
-36,
-12,
75,
70,
59,
26,
-114,
-76
] |
Conley Byrd, Justice.
The Workmen’s Compensation Commission allowed the claim of appellee Eugene F. Dodridge for hernia. The circuit court on review affirmed and appellants Lashlee Steel Company and its carrier, The Travelers Insurance Company, appeal on the basis that the claim does not come within the purview of Ark. Stat. Ann. § 81-1313(e) (Repl. 1960) which provides:
“In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence.”
Claimant testified that he was injured on September 18, 1969, while lifting a beam that weighed from 250 to 300 pounds. Upon experiencing pain in his back and lower stomach or groin on the left side, he wás unable to continue work. He then, punched his time card and went home. The next day he did not work but when he went by to pick up his check, he reported to the bookkeeper, the man in charge when the boss was not there, that he had hurt his back and had pain in the area where the hernia was subsequently found. He first went to a doctor on Tuesday following the Thursday injury. His explanation for the - delay was that he had had back trouble in the past and that he thought the pain was a recurrence of his old back trouble.
We agree with appellants that there is no substantial evidence to show a compliance with the fifth requirement, above, and that the commission erroneously allowed the claim.
In Miller Milling Company v. Amyett, 240 Ark. 756, 402 S. W. 2d 659 (1966) and Harkleroad, v. Cotter, 248 Ark. 810, 454 S. W. 2d 76, we pointed out that the showing of severe pain in the hernial region required by subsection (2) of the statute, above, is a subjective test whereas the subsection (5) requirement that the physical distress must be such as to require attendance of a licensed physician within 48 hours after the occurrence is an objective test and that if we held proof of the severity of the pain amounted to a substantial compliance with subsection (5), then subsection (5) would add nothing to the requirement that severe pain must occur.
Here the only evidence of pain is subjective. There is no objective evidence to show that the distress was such as to require the attendance of a licensed physician within 48 hours after the occurrence.
Our language in Harkleroad v. Cotter, supra, is here most appropriate. In that unanimous opinion we said:
“It might be argued, with considerable logic, that the specific statutory requirements as to proof in claims for hernia, penalize the honest, industrious and conscientious workman who fails or refuses to put down his tools immediately and rush to a doctor every time he feels pain following sudden strain or effort. The record before us in the case at bar indicates that the appellee was just such workman. It is a well recognized fact, however, that hernias may occur following any one of the numerous strains and efforts the average active individual workman may encounter during the 128 hour rest week, as well as during the 40 hour work week. It is a matter of common knowledge that witnesses do not see hernias sustained by fellow workmen as they would see a broken leg or broken arm. Consequently, the people have seen fit to make, and the legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt that it did occur within the course of employment as an immediate result of sudden effort, severe strain or force applied to the abdominal wall. The wording of the statute assumes the existence of a hernia. The statutory requirements of proof are directed at claims for hernia and not the existence or occurrence of a hernia.”
Reversed and dismissed. | [
52,
-23,
-99,
-100,
26,
-31,
34,
-102,
127,
-114,
39,
115,
-19,
-90,
21,
125,
-29,
127,
112,
39,
-10,
-109,
18,
122,
-62,
-41,
115,
-43,
-8,
107,
-12,
-41,
77,
48,
10,
-107,
-26,
10,
-51,
-100,
-50,
5,
-120,
-20,
121,
80,
56,
62,
80,
75,
-103,
-114,
107,
34,
20,
-49,
45,
45,
75,
-88,
-48,
-31,
-78,
13,
-9,
-108,
-77,
6,
-100,
39,
-38,
30,
-104,
48,
50,
-83,
82,
-74,
-126,
116,
43,
-87,
12,
98,
99,
32,
-119,
-91,
40,
-72,
15,
-66,
-99,
-91,
-93,
40,
123,
3,
-74,
-99,
114,
68,
-122,
124,
-8,
77,
93,
40,
11,
-122,
-106,
-77,
-49,
101,
-98,
-93,
-29,
15,
-109,
48,
-36,
-77,
125,
67,
123,
59,
70,
-80
] |
Carleton Harris, Chief Justice.
Appellant, Robert W. Maxfield, on September 17, 1969, at approximately 5:00 a.m., was operating a large tractor and trailer truck owned by appellant, A. C. Hamilton, the Hamilton vehicle traveling east on Interstate No. 40 near De-Valls Bluff, Arkansas. Interstate No. 40 is a four-lane concrete highway, two lanes running east, and two lanes running west, the lanes being divided in this particular area by a three foot concrete dividing wall. The evidence reflects that Maxfield was traveling at a speed of approximately 65 miles per hour, in the left-hand east bound lane and passed a tractor trailer unit operated by Ray DeVall who was traveling in the right-hand east bound lane. DeVall blinked his headlights as a matter of indie tting to Maxfield that the latter could safely pull back into the right-hand lane in front of DeVall, and when this was done, the vehicle driven by appellant struck a truck which was likewise proceeding to the east. From the testimony:
“So, as I passed the second Roadway truck, he blinked his lights, and I give a signal, and I looked in my mirror to make sure that I was clear, and I was clear, and I came in, and, again, I touched my marker lights, and I could see straight ahead, and there was nothing in front of me nowhere that I could see, and all of a sudden, just out of nowhere, I can see an object approximately from here to the end of the Court Room wall, just about this distance before I could actually tell that there was an object, and me traveling between sixty and sixty-five miles per hour, it appears that this object is doing at least ten to fifteen miles an hour to me, and, so, from here to the Court Room wall at that speed, at sixty to sixty-five miles an hour, that would come at you pretty quick.”
According to Maxfield, and also DeVall, the front truck, driven by Luther R. Wade, and owned by Charles Huck, appellees herein, was unlighted. When the collision occurred, Maxfield’s truck, which had already been cut to the left in an effort to avoid the crash, struck the concrete dividing wall. Maxfield was injured, and the truck was badly damaged. Subsequently, Maxfield and Hamilton instituted suit for personal injuries and property damage respectively, Hamilton also suing for loss of profits occasioned by the inability to use the truck. On trial, the jury returned a verdict for appellees, and from the judgment so entered, appellants bring this appeal. For reversal, it is asserted that the verdict was contrary to the preponderance of the evidence; that appellees, through counsel, intentionally brought to the jury’s attention the fact that repairs to the damaged vehicle had been paid for largely through insurance, and that the court erred in ruling that loss of profits of a commercial vehicle is not a recoverable element of damage in Arkansas.
We cannot, on appeal, decide this litigation on the question of whether the verdict was against the preponderance of the evidence. While the trial court had the authority to set aside the jury verdict for this reason, we are only concerned with whether there was substantial evidence to support the verdict. In Superior Forwarding Co. v. Sikes, 235 Ark. 932, 349 S. W. 2d 818, this court said that we will affirm a jury verdict on appeal if there is any substantial evidence to support it, even though the verdict may appear to be against the preponderance of the evidence. Accordingly, while there was certainly evidence to support the view of appellants, we examine the case to determine if there was evidence to support the view of- the jury. There is such evidence.
Trooper Mike Brandon, who investigated the accident, testified that the truck driven by Maxfield, after striking the Huck truck, moved on to the left and struck the median divider eighty-four feet east of the impact, then traveled three hundred and fifty-one feet up the left-hand lane along the divider until it came to a rest. In other words, -the truck traveled 435 feet from the point of the collision. There was also evidence that Max-field was driving with his lights on dim, but at any rate, we think a jury question was presented as to whether Maxfield was operating his vehicle at too great a speed under the circumstances, or whether he was keeping a proper lookout.
Nor do we find merit in the second contention. During cross-examination of Hamilton, counsel for appellees stated “I understand that the damages ran twelve thousand, seven hundred and ninety-four dollars and ninety-eight cents, according to a paper furnished me by your lawyer, that your insurance company paid for it”. No objection of any nature was made. Subsequently, the record reflects the following:
“COUNSEL FOR APPELLEES:
Q. Did you pay that amount yourself?
A. Yes, sir.
Q.. No one paid that for you, that two thousand?
COUNSEL FOR APPELLANTS:
Your Honor, I am going to object under the Collateral Source Rule.
COUNSEL FOR APPELLEES:
He is giving us one figure here, and then another one. I don’t care whether the insurance company paid it or not. I am curious as to why the figures are different.
THE WITNESS:
What figures are different?
JUDGE RHODES:
It would make no difference to who paid the bill. The gentleman would be entitled to recover if that much damage was done to his automobile.
COUNSEL FOR APPELLANTS:
No further questions.”
While the objection may have been pertinent for the reason given, it certainly did not constitute an objection that the question was prejudicial because of the mentioning of insurance. We have held that the making of a specified objection has the effect of waiving all other objections. Woods v. Pearce, 230 Ark. 859, 327 S. W. 2d 377. There was no request for a mistrial, nor even a request that the jury be admonished, although the statement of the court, quoted above, is somewhat in the nature of an admonishment. It follows that there was no reversible error.
Since we have found no error up to this point, it becomes unnecessary to discuss whether the court erred in excluding proof of loss of profits. In upholding the judgment for appellees on the question of liability, questions relating to proper evidence in support of a recovery, become moot.
Affirmed.
The record does not reveal that any such motion was made. | [
-16,
106,
-78,
44,
24,
2,
26,
-102,
-15,
99,
53,
83,
-89,
-49,
12,
97,
-25,
127,
116,
-88,
117,
-93,
23,
-93,
-110,
-45,
-21,
-57,
-79,
75,
124,
83,
76,
48,
-118,
21,
-28,
72,
-59,
-36,
78,
4,
-71,
-12,
89,
18,
56,
56,
20,
13,
17,
-114,
-57,
42,
30,
95,
41,
40,
-53,
-92,
-39,
-80,
-54,
7,
127,
18,
-95,
36,
-97,
1,
-8,
27,
-108,
-79,
32,
-68,
114,
-90,
-127,
-44,
105,
-55,
8,
0,
99,
9,
81,
-49,
124,
-72,
6,
-6,
31,
-122,
60,
9,
-85,
9,
-98,
29,
123,
18,
78,
-2,
124,
85,
25,
104,
7,
-53,
-80,
-95,
-123,
112,
-108,
26,
-53,
13,
48,
115,
-61,
-30,
79,
5,
123,
-109,
-122,
-14
] |
Conley Byrd Justice.
Appellants Mr. and Mrs. Arthur Ratzlaff, Mr. and Mrs. Harold C. Collins and Mr. and Mrs. S. D. Molter brought separate actions against appellee Franz Foods of Arkansas, a subsidiary of Tyson’s Foods, an Arkansas Corporation, to recover damages for certain noxious wastes discharged into the sewer system of the city of Green Forest, Arkansas, that allegedly polluted Dry Creek, a stream running through appellants’ properties. The trial court sustained a demurrer and dismissed each of the complaints. The three causes have been consolidated in this court because of the identity of the issues.
The complaints set forth that appellants are dairy farmers owning lands through which Dry Creek runs and then allege:
“(5) That the defendant, in its business as a chicken processing and fertilizer plant, utilizes the sewers of the City of Green Forest, Arkansas, under a contract which requires and makes it the duty of the defendant to remove and eliminate from its deposits into the sewer system, some or all of the following: Refuse, offal of fowls, blood, wastes and other unwholesome, offensive and noxious waste products; that one purpose of this contract was to prevent the sewage facilities of the City from being oversaturated and to prevent harm to landowners located down-stream from the City sewage facilities and that the defendant at all times herein knew of the purpose of this contract.
“(6) Defendant is guilty of the following acts of negligence which were a proximate cause of plaintiffs’ injuries and damages as hereinafter alleged:
(a) That the defendant, in violation of its contractual duty with the City of Green Forest, carelessly and negligently deposited great quantities of offensive waste products into the sewers of the City of Green Forest and thereby polluted and made foul Dry Creek to plaintiffs’ damage.
(b) That defendant failed to comply with its contract with Green Forest by allowing waste, blood, refuse and other unwholesome products to get into the sewer system when it knew or by exercising ordinary care should have known that the types and quantities of waste being deposited into the sewer system were in violation of its contract with the City and would result in pollution of Dry Creek to the injury of plaintiffs.
(c) That defendant negligently washed down its processing facilities so as to cause the pollution originally contracted against to occur; that defendant knew or should have known that it was violating its duty under its contract so as to injure plaintiffs and was in a position to prevent a recurrence of such injury and failed to prevent such recurrence to the damage of plaintiffs.”
In determining whether or not the complaints state a cause of action we find that we must consider and analyze three established principles of law. The first proposition is the general rule that one who creates a nuisance such as pollution of a stream is liable to lower riparian owners for the direct and probable consequence of the nuisance. See Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S. W. 2d 442 (1947) and Spartan Drilling Co. v. Bull, 221 Ark. 168, 252 S. W. 2d 408 (1952). The second proposition is that a user of a city sewer is clothed with immunity from liability once he lawfully deposits his sewage in the sewage system. The theory upon which immunity from liability is granted to the user is that once the sewage is deposited in the city’s conduit, the user no longer has control of the disposal of the sewage because by law the city is given the exclusive right to control and dispose of sewage. See Carmichael v. City of Texarkana, 116 F. 845, 54 C. C. A. 179 (1902). h was upon this theory, apparently, that the trial court dismissed appellants’ complaints.
The third principle of law is that a party who owes no obligation to third persons or the public in general may by contract assume an obligation to use due care towards such third persons or the public in general. See Hogan v. Hill, 229 Ark. 758, 318 S. W. 2d 580 (1958) and Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059 (1919). When this principle is read in connection with the complaint allegations that the appellee violated its contract with the city to remove certain refuse to prevent oversaturation of the city’s sewage disposal facilities, we find that the trial court erred in sustaining the demurrers and dismissing the complaints. This is supported both by logic and authority. The very essence of the immunity from liability, stated in the second principle above, is that the user of the city’s conduit loses control of sewage once it is deposited and that exclusive control thereafter is in the city. However here the allegation is that the user who contracted not to oversaturate the city’s treatment facilities violated such contract and thereby caused a pollution of the appellants’ lands. Un der such allegations it does not logically follow that a user in violation of his contract can wrest the control of the city’s sewage facilities from the city and at the same time stand behind the immunity which the law accords in the second principle stated above. Furthermore, in Carmichael v. City of Texarkana, supra, it was recognized that a user under some circumstances could be liable. It was there stated:
“This conclusion has not been reached without a careful consideration of the broad averments in the bill that the demurrants and the city, acting together in concert at the same time, have, by means of the open sewer and its use, created and maintained this nuisance, and that they have not ceased to do so. If these allegations stood alone, they would undoubtedly charge these citizens with liability; but they are accompanied with averments that the demurrants invoked the power of the city to construct the sewer, that the city was guilty of gross negligence in building it, and that the demurrants had used, occupied, and operated it ‘by authority of, under, and from the city.’ When all these statements are read together with the statutes which vest the right to construct, to change, to repair, and to control this sewer exclusively in the city, there is no escape from the conclusion that the acts and omissions of the city, and not those of the citizens, constituted the proximate cause of the injury to the complainants, and that the inhabitants who requested the construction and operation of the improvement are not liable for those acts and omissions, because they had no power to command or control the city in their performance.”
Reversed and remanded. | [
-15,
-20,
-67,
-20,
24,
-95,
56,
-102,
91,
-85,
-27,
83,
-55,
117,
13,
113,
-29,
-35,
-60,
105,
-60,
-74,
1,
66,
-46,
-105,
120,
69,
-80,
79,
-28,
-49,
-4,
16,
74,
-115,
-26,
-126,
-55,
92,
-122,
10,
9,
113,
121,
-62,
52,
107,
84,
71,
112,
12,
-22,
46,
28,
-61,
9,
44,
105,
45,
72,
115,
41,
5,
31,
22,
34,
6,
-104,
7,
82,
72,
-112,
49,
24,
-88,
115,
50,
-122,
116,
1,
-103,
12,
32,
98,
34,
13,
-91,
-56,
5,
15,
-1,
-115,
-91,
-120,
104,
83,
2,
-66,
20,
124,
90,
31,
-6,
-20,
-123,
27,
44,
-125,
-126,
-108,
-79,
-81,
-92,
-34,
51,
-17,
47,
49,
117,
-51,
-14,
93,
79,
112,
-37,
28,
-107
] |
John A. Fogleman, Justice.
This is a suit to quiet title in the appellee, Jack C. Vaughn, against any right, title, claim or interest of appellants. O. M. Helms and Dovie Helms and others, in an undivided one-eighth interest in the oil, gas and mineral royalty in, upon and under a 40-acre tract of land in Lafayette County, Arkansas. The facts are not disputed.
On April 21, 1947, O. M. Helms and wife, Dovie Helms, owners in fee simple of the land, conveyed an undivided one-fourth royalty interest in and to all oil and gas and other minerals in the land to H. Steckol. Spartan Drilling Company, a partnership composed of G. H. Vaughn, Jr., and Jack C. Vaughn, purchased the interest of H. Steckol and his wife, Ethel Wheeler Steckol, on July 5, 1947. When the Spartan Drilling Company was dissolved on December 31, 1958, each of the partners was declared to be one-half owner of all the interest owned by the partnership. On December 27, 1963, Jack C. Vaughn and wife, Mary Josephine Mc-Corkle Vaughn, executed an instrument, describing the 40-:acre tract, which, in pertinent part, reads:
RELEASE
KNOW ALL MEN BY THESE PRESENTS:
THAT, JACK C. VAUGHN, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby release, remise, relinquish and surrender all of his right, title and interest in and to the oil royalty, gas royalty and royalty in casipghead gas, gasoline and royalty mined from the following described lands in Lafayette County, Arkansas, to-wit: . . .
This appeal was taken by the Helmses only. Steckol and his wife filed a disclaimer and asked the court to dismiss the cause as to them.
The chancellor held the “release” void and of no effect for the reason that it did not have a grantee and was not a proper conveyance and that Vaughn was not estopped because there was no showing that any of the defendants relied on the “release” to their detriment. Title to the royalty interest in the land was quieted and confirmed in Jack C. Vaughn, appellee, as against the defendants.
The appellants contend that the release executed by the appellee is a valid conveyance that divested title from appellee and vested it in appellants, that the release constituted an abandonment of the royalty interest, and that a royalty estate once abandoned should merge with the surface estate and be considered as a single interest.
The law is well settled in this state that a conveyance of oil or gas in its natural state is a conveyance of an interest in land. Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S. W. 122; Watts v. England, 168 Ark. 213, 269 S. W. 585; Arrington v. United Royalty Company, 188 Ark. 270, 65 S. W. 2d 36, 90 A. L. R. 765; Hanson v. Ware, 224 Ark. 430, 274 S. W. 2d 359, 46 A. L. R. 2d 1262. Since an oil and gas deed conveys an interest in land, all the formalities of a conveyance of any other interest are required. Osborn v. Arkansas Territorial Oil if Gas Co., supra. The release executed by Jack Vaughn and his wife could not operate as a conveyance to anyone since no grantee was named or otherwise identified in the instrument. Adam-son v. Hartman, 40 Ark. 58; Williams v. Courton, 172 Ark. 129, 287 S. W. 745; Curlee v. Morris, 196 Ark. 779, 120 S. W. 2d 10. Thompson on Real Property, Perm. Ed., Vol. 6, 347, § 3006 states:
Unless a grantee is named in some part of the deed, title does not pass, and the deed is void; but this mle cannot be invoked to affect the equitable rights of the parties growing out of the transaction. The principle of implied authority to fill in blanks is not applicable to deeds. A deed which failed to name a grantee and was not acknowledged at the time of its execution was void in the absence of circumstances showing the application of the doctrine of estoppel.
In Nall v. Scott, 233 Ark. 21, 342 S. W. 2d 418, we said that no particular form was necessary to constitute a release, so long as the contract is complete, the intention to release manifest and the parties sufficiendy described to identify them. Here, elements of a complete contract are lacking, and the parties in whose favor the release should operate are not identified. This release could have been to Jack Vaughn’s partner or to Steckol as well as to the Helmses.
Appellants contend that appellee abandoned the property. Appellee asserts that this argument was not raised in the trial court and cannot be raised here for the first time. In their answer to the appellee’s complaint the appellants alleged among other things that the release executed by the appellee surrendered all his rights, title and interest and that the title to the royalty interest should be quieted in them. We construe pleadings liberally in favor of the pleader, and every reasonable inference and intendment are indulged in his favor. American Underwriters v. Shook, 247 Ark. 1082, 449 S. W. 2d 402; Dickerson v. Hamby & Haynie, 96 Ark. 163, 131 S. W. 674. See Ark. Stat. Ann. § 27-1150 (Repl. 1962). Since the appellants alleged that the appellee surrendered the land, we cannot say that abandonment was not an issue in the trial court.
We do not agree, however, that the elements necessary for abandonment are present in this case. One cannot divest himself of title to real property by abandonment alone. There must not only be an intent on the owner’s part to relinquish his claim, it must be accompanied by circumstances of estoppel and limitation, if the abandonment is not by a legal deed of conveyance. Carmical v. Ark. Lbr. Co., 105 Ark. 663, 152 S. W. 286; Sharpp v. Stodgill, 191 Ark. 500, 86 S. W. 2d 934, 87 S. W. 2d 577; C. W. Lewis Lumber Co. v. Fletcher, 224 Ark. 464, 274 S. W. 2d 472. There was no evidence of any reliance on Vaughn’s alleged abandonment or of any other condition which would create an estoppel or bring limitations into play.
Appellants’ third point is based upon a finding of abandonment. Since we find that an abandonment was not shown, we do not reach the question of a merger of royalty rights with the surface estate.
The decree is affirmed. | [
116,
-23,
-36,
-68,
40,
-32,
58,
-86,
75,
-87,
117,
83,
-81,
-2,
9,
121,
-21,
45,
-12,
108,
-73,
-93,
19,
-96,
83,
115,
-7,
-51,
-16,
-52,
-66,
-41,
72,
32,
-54,
85,
-62,
40,
69,
28,
-58,
0,
-101,
96,
89,
4,
52,
43,
16,
15,
17,
-114,
-30,
45,
21,
111,
109,
44,
-17,
44,
81,
112,
26,
6,
-1,
20,
48,
20,
-103,
-60,
-24,
27,
-110,
52,
8,
-24,
91,
38,
-62,
-11,
10,
-97,
44,
-90,
-29,
3,
-63,
-17,
-68,
-72,
22,
-2,
-115,
-91,
-29,
72,
2,
105,
-106,
28,
122,
-119,
-41,
126,
-18,
-123,
93,
-71,
35,
-113,
-106,
-93,
15,
-3,
-99,
17,
-29,
-73,
50,
86,
-53,
-29,
93,
71,
60,
-109,
7,
-79
] |
John A. Fogleman, Justice.
Two questions are presented on this appeal. The first is whether the Arkansas Workmen’s Compensation Commission has jurisdiction of this claim—or more properly stated, whether the Arkansas Workmen’s Compensation Law can be applied. The second is whether the claimant Tidwell has suffered a compensable injury. The commission held against appellant on both points. There has been no determina tion that appellee has suffered a permanent disability resulting from accidental injuries. This matter was reserved until the commission hears additional evidence as to the end of the healing period and as to permanent disability. The only award made is for compensation for a period from August 8, 1968, through September 22, 1968 and from October 17, 1968, until a date to be later determined and for medical expenses incurred as well as those to be incurred for additional medical treatment to be arranged by International Paper Company through Dr. Jim Moore.
The first is a mixed question of law and fact. Insofar as the factual determinations are involved, the findings of the commission are binding upon the courts if there is any substantial evidentiary support. Voss v. Ward’s Pulpwood Yard, 248 Ark. 465, 452 S. W. 2d 629. We must accept that view of the facts which is most favorable to the commission’s findings. Albert Pike Hotel v. Tratner, 240 Ark. 958, 403 S. W. 2d 73. Where fair-minded men might honestly differ as to the conclusion to be drawn from facts, either controverted or uncontroverted, the drawing of inferences and reaching of conclusions are for the commission, not the courts. Guynn v. Helena Hospital, 240 Ark. 56, 398 S. W. 2d 526. The commission found it had jurisdiction because appellee was a citizen and resident of Arkansas both prior to and at the time of his injuries, was paid under the supervision of appellant’s Arkansas office, was paid his wages in Arkansas and the contract of employment was entered into in Arkansas. There was substantial evidence to support these findings.
Tidwell was born in Arkansas. He was employed by the United States Corps of Engineers for 10 years prior to his employment by International. He was operating a bulldozer at Lake Ouachita in this previous employment when he applied for a job at appellant’s regional office in Camden, Arkansas. He took a physical examination at Camden to meet appellant’s requirements. He testified that he considered- Hot Springs, Arkansas, to be his home. He had no family, except for his parents who lived at Mt. Ida, Arkansas. He did not live with them. Tidwell reported to work at Jefferson, Texas, on Monday, June 24, 1968, as a member of a five-man crew of which one Wells was foreman. Wells’ orders and directions came from the Camden office. Paychecks of all employees of International working in Texas and other parts of the Western Region are issued from Camden. When Tidwell needed medical attention after August 7, he returned home and went to Dr. Lon E. Reed at Hot Springs, under whose care he remained for four weeks. When his doctors advised him to return to work, he went back to Jefferson and worked September 23 and 24. He suffered a recurrence of his earlier symptoms, had to be relieved from driving a bulldozer, and returned home to Hot Springs. Subsequently, at the suggestion of Grady Collier, appellant’s Road Maintenance Foreman for its Western Region, he drove a dump truck at Hampton, Arkansas, about two weeks, after which he felt that he was unable to continue in that work. All his medical treatment has been in Arkansas.
Tidwell testified that he left his job in Arkansas on Friday before reporting to his new employer in Texas on Monday. His work required him to move from place to place in Texas and to obtain a place to live in each. While in Texas he lived at Jefferson in a room in a private home for three or four days in June, at Carthage in a motel for about three weeks and at Center in a boarding house for about two weeks just prior to August 2. All of these are within a radius of 30 miles. Orders for these various job assignments came from the Camden headquarters. All of the members of Tidwell’s crew lived in private homes, boarding houses or motels and had to find new places to live as they moved about their territory.
The Western Region of International encompasses Arkansas, the eastern half of Louisiana, east Texas and a part of Oklahoma. Its headquarters are at Camden, and Tidwell was hired by Collier there. He was employed to work in Texas and considered a regular member of his crew in one of the districts there. Each district has its on management. The road foreman for In temational’s entire Western Region lives in Arkansas, but his duties take him over the entire region. The International employee with whom Tidwell roomed while he worked at Hampton was a Texas resident. Tidwell was treated as a Texas employee by International. The timekeeper,. who had responsibility for payroll, insurance and compensation matters for the company had his office at Camden. Tidwell was covered by the company’s workmen’s compensation insurance in Texas, and his wages reported to the State of Texas for that purpose. The company uniformly carried its workmen’s compensation insurance on those employed to work in a particular state in that state. It contends that, since Tidwell was employed to work in Texas and suffered whatever injury he did suffer in that state, Texas law governs. Since the evidence, when given its strongest probative force in favor of the commission’s findings of fact, is substantial, as we have illustrated, the question becomes one of law.
We have never directly passed upon this question. In approaching it, we have no specific statutory provision to govern us as do most other states. See I Schneider, Workmen’s Compensation Text, Chapter 5; 3 Larson, Workmen’s Compensation Law 375, et seq., §§ 87.00, et seq. Workmen’s compensation is governed wholly by statute, so unless we find a statutory basis for entertainment of a claim, an employee must be left either to his common law remedy or to the compensation laws of another state when the injury took place in that state. Ark. Stat. Ann. §§ 81-1323 (b) (Repl. 1960) and 81-1325 (b) (Supp. 1969) contain the only express mention of extraterritoriality in our act. In the former section, we find clear recognition that a claim may be allowed when the accident took place outside the state if compensation is payable under the act. Then the hearing may be held either in the county of the employer’s residence, or of his place of business or of greatest convenience as determined by the commission. The later section only provides that appeal from the commission’s action goes to the circuit court of the county in which the hearing was had when the accident occurred outside the state. It should be noted that there is no limitation in these sections on the nature of out-of-state accidents which may be heard by the commission. Consequently, we must turn to other provisions for any limitations there might be. If there is a limitation it must be found in provisions having to do with coverage. Insofar as the facts of this case are concerned: an employee is one in the service of an employer under a contract of hire, Ark. Stat. Ann. § 81-1302 (b) (Repl. 1960); an employer is one Carrying on an employment, Ark. Stat. Ann. § 81-1302 (a) (Repl. 1960); and employment means every employment carried on in the state, Ark. Stat. Ann. § 81-1302 (c) (Repl. 1960). Liability for compensation is based upon disability or death from injury “arising out of and in the course of employment.” Ark. Stat. Ann. § 81-1305 (Repl. 1960).
In considering these statutory provisions and definitions, we must construe and apply them liberally in favor of a claimant in the light of the beneficent and humane purposes of the act, resolving all doubtful cases in his favor. Reynolds Metals Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211; Arkansas Nat. Bk. v. Colbert, 209 Ark. 1070, 193 S. W. 2d 806; E. H. Noel Coal Co. v. Grilc, 215 Ark. 430, 221 S. W. 2d 49; Donaldson v. Calvert McBride Printing Co., 217 Ark. 625, 232 S. W. 2d 651; Clemons v. Bearden Lumber Co., 236 Ark. 636; 370 S. W. 2d 47; Clemons v. Bearden Lumber Co., 240 Ark. 571, 401 S. S. 2d 16; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579. Liberality of construction with reference to individual rights under our act is resorted to whenever obscurity of expression or inept phraseology appears and, given a restrictive construction, would have the effect of defeating praiseworthy purposes that undoubtedly actuated our lawmaking body. Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S. W. 2d 959. See also McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S. W. 2d 401; Sallee Bros. v. Thompson, 208 Ark. 727, 187 S. W. 2d 956.
Recognized purposes of the act are to improve employer-employee relationships, to insure the security of employees following covered employment by substituting awards for losses sustained by reason of such employment which are more nearly proportionate to the loss and more certain and more satisfactory than former remedies in tort, to ameliorate the condition of disabled workers by shifting a part of the burden of accidents in covered employment to the public in general and to charge to the ultimate consumers a part of the loss from risks of such employment. Hughes v. Hooker Bros., 237 Ark. 544, 374 S. W. 2d 355; Hunter v. Summerville, supra; Williams Mfg. Co. v. Walker, 206 Ark. 392; 175 S. W. 2d 380. We have said that these purposes are based upon a contractual relationship and the public welfare. Gentry v. Jett, 235 Ark. 20, 356 S. W. 2d 736.
In considering cases involving out-of-state accidents, we have followed a policy of liberality rather than restrictiveness. In McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S. W. 2d 608, we held that a Mississippi resident, who was a traveling salesman for an Arkansas concern, injured in an accident in Mississippi, was entitled to pursue his claim against his Arkansas employer under Arkansas law in spite of the fact that he had been paid maximum benefits under Mississippi law for the same accident by a Mississippi employer. We also rejected a narrow and restricted construction when we said that an employment did not cease to be “carried on in this state” by reason of only temporary and incidental operations in another state, in holding that an employer was subject to the act, even though he did not have five employees, unless those working in Missouri at the time one of them was injured wei;e counted. Feazell v. Summers, 218 Ark. 136, 234 S. W. 2d 765. We also found no sound reason that the laws of a state in which an employee was injured could keep this state from discharging its contractual obligation under the Workmen’s Compensation Act to one of our citizens. Gentry v. Jett, 235 Ark. 20, 356 S. W. 2d 736.
In considering federal constitutional limits on application of state laws in compensation cases, Professor Larson points out six grounds on which the applicability of a particular compensation act has been asserted. They are:
(1) Place where the injury occurred;
(2) Place of making the contract;
(3) Place where the employment relation exists or is carried out:
(4) Place where the industry is localized;
(5) Place where the employee resides; or
(6) Place whose statute the parties expressly adopted by contract.
Professor Larson then expresses the opinion, which seems to be supported by authority, that the state which was the locus of any one of the first three items and perhaps of the next two, can constitutionally apply its statute if it wants to, in spite of “full faith and credit” attacks. 3 Larson’s Workmen’s Compensation Law 368, § 86.10.
Satisfaction of constitutional standards is not a sufficient basis for a state’s application of its own law. The state itself must make the application, or authorize it, by statute. Early decisions held that these statutes had no application to extra-state injuries without unequivocal statutory language making them applicable. See In re Gould, 215 Mass. 480, 102 N. E. 693 (1913). This approach is not in accord with the liberal construction view we take. Many later decisions have not followed the Massachusetts court. As early as 1915, the Connecticut Supreme Court recognized that no statute has extraterritorial effect unless the intention that it have is clearly expressed or reasonably to be inferred from the language of the act, but held that in determining whether such an inference was reasonable, its workmen’s compensation act was to be given a liberal construction to effectuate its remedial purpose and to be read in the light of its purpose, subject matter and history. That court found that a limitation of the act to compensation for intrastate injuries would tend to defeat the ends in view. On the other hand it found a reasonable inference that the legislature deemed the place of injury unimportant when it bottomed the right to compensation upon contract. In interpreting its act, that court found significance in the place of domicile of the injured party, the place of contract between the employer and employee and the location of the employer. The Connecticut act was not as extensive on the subject as ours, as it apparently limited filing of awards to the county in which the injury occurred and appeals to the superior court for the county in which the injury was sustained. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372 (1915).
Most of the jurisdictions lacking specific and unequivocal statutory language have followed similar approaches. In Grinnell v. Wilkinson, 39 R. I. 447, 98 A-103 (1916), the court followed the Connecticut decision, saying that its own act should be read into every contract of employment between those subject to its terms. In reaching its decision the Rhode Island court mentioned the likelihood that one of its residents injured elsewhere would come home for treatment and prosecution of his remedy and would be subject to examination in Rhode Island.
In giving a liberal construction to the Iowa act, some emphasis was placed by the court upon a statutory provision like ours for compensation for any and all injuries sustained, without any limitation other than that they shall occur in the course of and arise out of the employment. Pierce v. Bekins Van & Storage Company, 185 Iowa 1346, 172 N. W. 191 (1919). [See Ark. Stat. Ann. § 81-1302 (d) (Repl. I960)]. Later the rule that out-of-state injuries were covered by the Iowa compensation act was extended to an employment carried on by the employee, an Iowa resident, wholly within the state of Oklahoma, as contemplated by the parties when the contract of employment was entered into in Iowa. Haverly v. Union Const. Co., 236 Iowa 278, 18 N. W. 2d 629 (1945). In that case, the Iowa office of the employer reimbursed the local office in Oklahoma for payroll disbursements approved in Iowa, general manage ment and control was maintained in the Iowa office, and all bills were paid and books kept in the Iowa office.
In New Jersey, it was held that a contract of employment entered into in New Jersey with an employer maintaining a New Jersey office calling for services to be performed by a New Jersey resident exclusively in Pennsylvania, containing a provision that it be interpreted according to the laws of Pennsylvania, did not prevent New Jersey compensation law from entering into the contract by operation of law, regardless of the place where the compensable injury occurred. Gotkin v. Weinberg, 2 N. J. 305, 66 A. 2d 438 (1949).
It was also held that the Wisconsin commission had jurisdiction to make a compensation award to a Wisconsin resident who accepted an offer of employment by a Wisconsin corporation and immediately went to Michigan in furtherance of his employment, where he was injured. The court held that upon these facts, the status of employee and employer was covered under the Wisconsin act, even though no work was performed by the employee within Wisconsin. Julton-Kelly v. Industrial Commission of Wisconsin, 220 Wis. 127, 264 N. W. 630 (1936). See also Dunville v. Industrial Commission, 228 Wis. 86, 279 N. W. 695 (1938).
In New York, the rule seems to be that the New York laws are applied in cases of extrastate injuries to employees whose services are performed in another state if there are sufficient significant New York contacts, whenever the employment is not carried on at a fixed location. See Cameron v. Ellis Const. Co., 252 N. Y. 394, 169 N. E. 622 (1930); Nashko v. Standard Water Proofing Company, 4 N. Y. 2d 199, 149 N. E. 2d 859 (1958); Rutledge v. Kelly & Miller Bros. Circus, 18 N. Y. 2d 464, 223 N. E. 2d 334 1966); Shorr v. U-Wan-Na-Wash Frocks, 284 App. Div. 778, 135 N. Y, S. 2d 143 (1954); Baduski v. S. Gumpert & Co., Inc., 277 App. Div. 591, 102 N. Y. S. 2d 297 (1951); Burton v. Ziegler Pharma cal Corp., 9 App. Div. 2d 811, 192 N. Y. S. 2d 609 (1959); Levin v. Eutectic Welding Alloys Corp., 21 App. Div. 2d 925, 251 N. Y. S. 2d 127 (1964).
It is true that the acts in some of the above states are elective and that the employee in some cases from others either had previously performed employment for his employer in the state where the claim was asserted or did regularly perform a part of his duties in that state. None of them had more specific statutory prescription of extraterritorial application than we have. When we consider the interest that this state has in the welfare of its residents, in minimizing the likelihood of their becoming public charges or objects of local charity, in having a procedure for a remedy readily available to its residents, and in securing compensation to physicians and hospitals in Arkansas which might not otherwise be available to a claimant, we cannot say that reason and logic require a different approach to a liberal construction of our statute because of these limited dissimilarities, in spite of the fact that a different result has been reached in other jurisdictions, and the fact that the injury might be compensable under the laws of another state.
We have no hesitation in holding that where the contract of employment is entered into in this state between an Arkansas resident and an employer who is localized as a resident or who maintains an office which exercises general superintendence and control over the employment which is not carried on at a fixed location, the Arkansas Workmen’s Compensation Act applies and the Arkansas Workmen’s Compensation Commission has jurisdiction, even though the injury occurred in a state in which it was contemplated by the parties that the employment would be entirely performed. This result is consistent with our previous decisions earlier cited. It is also harmonious with Restatement of the Law, Conflict of Laws § 398.
The second point for reversal presents a close question. Appellant argues that appellee’s disabilities are attributable entirely to vascular disease and that his employment did not contribute in any way to his condition. Appellee contends that exertions required of him in the performance of the duties of his employment aggravated his condition and accelerated his disability, so as to provide the necessary causal connection. Appellant says, however, that whatever exertion was required of Tidwell only excited symptoms of his vascular disease but did not aggravate his condition or cause any damage to Tidwell’s system that was disabling. While the question is not free from doubt, and we might well have sustained a contrary finding by the commission, we cannot say that the evidence in support of the commission’s award, when all doubts are resolved in favor of the claimant, was not substantial.
Inasmuch as the question here is one peculiarly within the realm of scientific knowledge, we must find support in the medical testimony in order to say that the evidence of causal connection is substantial. We will review the evidence forming the background for medical testimony only to the extent necessary to connect Tidwell’s condition with his medical examinations and treatments. The commission related Tidwell’s disability to an occasion on August 5 when he crawled under a truck, furnished him by his employer for performance of his duties, to grease it, and to another occasion on August 7 when he assisted in putting a misaligned bulldozer track on its proper supports. It found that the claimant had some disabling residual paralysis from a pre-existing carotid vascular disease characterized by a syndrome of atheromatous plaques in the carotid artery, contributed to and aggravated by claimant’s work. Specific reference was made by the commission to the opinion of Dr. Jim Moore, a Little Rock neurosurgeon, that the immediate cause of the claimant’s blurring of vision and numbness in his left arm and leg was related to a decreased oxygen supply to appellee’s brain due to a marginal right carotid artery at a time when the brain demanded increased oxygenation because of increased body heat and exertion.
Tidwell satisfied his employer’s health requirements. He apparently worked without any difficulty until August 5 as a heavy equipment operator in a road construction crew, although he had not been feeling well for the last two weeks of the period. On August 5 he was driving a truck servicing tractors with water, fuel, oil and grease. He crawled under a bulldozer to lubricate some part and began to feel ill and to experience aching and numbness in his arms and legs and a blurring of his vision. He crawled out, lay down and rested for about an hour. Having no drinking water, he drove his truck to a place where other employees were working, drank some water, ate a part of a sandwich and helped load a water pump. His foreman cautioned him that he might be taking the “flu” and to be careful. He explained to his foreman that he had gotten awfully hot, that he really was not “working all that hard” but was out of water. The temperature was in the mid-nineties. Tidwell testified that his difficulties occurred while he was working in a hot sandy area which was exposed to the sun and from which any breezes were obstructed.
On August 6 he did only very light work by the direction of his foreman, but on August 7 went with his foreman to help five or six other employees in attempting to replace a misaligned bulldozer track. It was a hot day and all of the men thus employed were suffering from heat and resting in the shade at frequent intervals. He worked from 10:30 a.m. until 5:00 p.m. Tidwell said that he was overheated by this work, and could not even get up enough strength to use a grease gun. He told his foreman he had had enough and went home where he saw his Hot Springs physician the next day.
Tidwell did not see Dr. Moore until October 17, after he had driven a dump truck at Hampton for 13 days. He quit because the work on the narrow roads made him nervous and because he was having some difficulty with his vision. Dr. Moore diagnosed his disease in both carotid arteries. He attributed the basic cause to hardening of the arteries, which produced an abnormal collection of tissues or plaques in the arteries, which tend to cause an obstruction therein. When one’s arteries are thus obstructed, he will experience inter- mitten t episodes of numbness in the extremities, a tingling sensation in his hands and feet and some blurring of vision, according to Dr. Moore.
The disease is clearly not occupational. After the first episode, Dr. Reed, a general practitioner, had originally diagnosed appellee’s trouble as heat exhaustion, but later sent him to a neurosurgeon who only found a chronic syndrome attributable to plaques in a carotid artery. On his first examination, Dr. Moore found evidence of a partial paralysis of the left side of Tidwell’s body, which evidenced abnormality of the carotid artery. He found the extent of Tidwell’s development of hardening of the arteries unusual for his age. He stated that obstruction of the artery creates a swirling or eddy type of current in the blood flow, and in the carotid artery, and this affects the person’s brain. The plaques in the arteries are not caused by a single episode of exertion, but Dr. Moore felt that stress and aging are factors which have a bearing upon the condition. It was this physician’s opinion that the plaque causing Tidwell’s difficulties had been present and steadily progressive before his first episode in Texas; that Tidwell’s initial symptoms developed on the basis of aggravation from exertion; and that his exertion had required an increased oxygen supply in the brain. The following question was propounded and answer given by this doctor:
Q. Do you think becoming overheated would have had any effect on this condition by itself, just that one thing?
A. It could possibly. Certainly increasing body heat, increasing metabolism and increasing the need for oxygenation, and if a part is already at a point of tenuous supply, it’s more or less the straw that broke the camel’s back.
The doctor later stated:
A. * * * I think also, again going back to his history and perhaps wrongly assuming that August Five would be in the summertime, knowing some relatively very limited information as to the stress that is required on bulldozer procedure, that the immediate cause of this patient’s complaints as they were, blurring of vision, numbness of the left arm and leg, and, then, intermittent episodes of this was related to decrease in oxygen supply to the brain, and this in turn was due to the fact that he had a marginal artery in the first place to supply this. Therefore, I think stress is the thing that precipitated this man’s problem.
# * *
A. First of all, the plaque formation could have been increased by development of some soft clot, not complete; secondly, there could have been enough embarrassment of brain cell, and apparently were, was enough embarrassment of the brain cells for this patient to still be marginal in his ability to function, even at a more sedentary level of walking around, and I might say that I have recorded that he described this intermittent episode of numbness of the left arm and leg, that he felt it was more pronounced at a period of exertion than he did it recurring at other times.
The only other medical testimony of any significance was that of Dr. Reed who testified that heat precipitated Tidwell’s partial paralysis, and that he would not have advised a man with Tidwell’s condition to be out in the hot sun driving a bulldozer. Dr. Reed did say that one with Tidwell’s condition, whose blood circulation to the brain was substantially decreased, would suffer a minor stroke or strokes and have damage to the brain which might be evidenced by sudden aging, or a complete change of personality.
The closest analogy in our cases where awards are based on aggravation of a pre-existing condition are those where heart disease is involved. In most of them, the only real difference seems to be that the atheromatous plaques resulting from arteriosclerosis are localized in the arteries around the heart rather than in the carotid arteries as is the case here. Any obstruction resulting from these plaques seems to cause a deficiency in the oxygen supplied by the blood which affects the heart in one case and the brain in the other. The result is a heart attack or a stroke, of varying intensity, depending to some extent upon the extent and duration of the obstruction.
We have found substantial evidentiary support for awards in heart cases upon even less certain medical testimony. See Kearby v. Yarbrough Brothers, 248 Ark. 1096, 455 S. W. 2d 912; Bradley County v. Adams, 243 Ark. 487, 420 S. W. 2d 900. We found “accidental injury” where there had been a collapse on the job resulting from unusual exertion or strain by a worker having a pre-existing ailment in such cases as Dougan v. Booker, 241 Ark. 224, 407 S. W. 2d 369. This case is closely parallel to Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S. W. 2d 872, involving a disability from a myocardial infarction. There the claimant twice had to quit his work because of pains in his chest and arms. The medical testimony supporting the claim was to the effect that the claimant’s exertion on the job placed demands upon his heart which could not be met by his arteries which were diseased because of arteriosclerosis and that this might well have aggravated a pre-existing coronary insufficiency, the ultimate result of which was precipitation of a myocardial infarction. In another such case, we found substantial evidence of causation in medical testimony that an employee’s work activities before he became ill, particularly longer than usual hours, may have contributed to his massive coronary occlusion due to arteriosclerosis from which he had suffered for about five years. The doctor there, on cross-examination, stated that in his personal opinion he thought that the work of that day was a contributing factor. Georgia-Pacific Corporation v. Craig, 243 Ark. 538, 420 S. W. 2d 854. Of course, we have long held that any work aggravation of an existing arterial disease which hastens either injury or death is compensable as arising in the course of, and out of, the employment. Reynolds Metals Co. v. Cash, 239 Ark. 489, 390 S. W. 2d 100. It is consistent with our holdings in these cases involving heart ailments due to arteriosclerosis to say that the testimony of the physicians, relating to precipitation of a partial paralysis and the likelihood of brain damage (or embarrassment of brain cells) because of demands for increased oxygen supply to the brain brought on by stress and unusual exertion by Tidwell in the conditions under which he was working, constitutes substantial evidence of aggravation or acceleration of his pre-existing condition resulting in some injury or damage to support a finding of causal connection, insofar as his disability is concerned. It must be remembered that as yet there has been no finding that Tidwell suffered any permanent disability as a result of this aggravation or acceleration of his condition.
The judgment is affirmed.
Harris, C. J., dissents.
Byrd, J., dissents only as to the question of jurisdiction.
There is no evidence that Tidwell had any knowledge of this fact or that he consented to this coverage.
An excellent discussion of the problems involved, and approaches taken and factors considered in solving them will be found in American Conflicts Law by Dr. Leflar, §§ 158, 159, 160 and 161. | [
20,
-22,
-11,
-100,
27,
-63,
58,
-86,
119,
-76,
101,
83,
-19,
-49,
-99,
105,
-29,
127,
-43,
123,
-45,
-77,
19,
107,
-62,
-105,
121,
71,
-71,
107,
-12,
-44,
77,
48,
-118,
-47,
-26,
64,
-59,
28,
-50,
4,
-117,
-20,
89,
-126,
56,
46,
88,
75,
49,
-98,
-22,
42,
20,
-53,
109,
46,
75,
-92,
81,
49,
-120,
5,
-1,
0,
-95,
36,
-104,
7,
114,
28,
-112,
-79,
25,
-68,
114,
-74,
-122,
116,
107,
-103,
12,
98,
99,
32,
-107,
-25,
-20,
-72,
30,
-2,
-99,
-91,
-80,
25,
75,
75,
-105,
-99,
122,
20,
6,
124,
-10,
77,
86,
44,
-125,
-114,
22,
-79,
-49,
96,
-98,
-125,
-21,
-121,
16,
117,
-50,
-14,
93,
5,
115,
-101,
19,
-104
] |
George Rose Smith, Justice.
The appellant, along with two other men, was charged with the crime of having unlawfully possessed a stolen tractor. Tried separately, the appellant was found guilty and was sentenced to imprisonment for five years. For reversal the appellant contends only that the trial court erroneously allowed police officers to narrate to the jury an admission of guilt which the officers wrongfully obtained by threatening to charge the appellant’s father with the offense, which the appellant himself had allegedly committed.
A study of the record shows that the appellant’s argument is based upon a misconception of what happened at the trial. The defense vigorously argued that the appellant’s admission of guilt was improperly obtained, because the officers resorted to a threat against the elder Rogers, as we have indicated. According to the record, however, the court sustained the argument of defense counsel and permitted the jury to hear only an admission made by the younger Rogers before the threat in question was made. We agree with the trial court’s conclusion that the earlier admission was voluntarily made. The court properly ruled that all statements elicited by means of the threat were involuntary and were not to be submitted to the jury. In the circumstances the record is simply devoid of prejudicial error with respect to the only point for reversal that is before us.
Affirmed. | [
48,
-22,
-24,
30,
10,
96,
-86,
-68,
-63,
-32,
-90,
-77,
-87,
66,
21,
43,
-17,
119,
85,
105,
-60,
-77,
119,
-13,
-10,
-13,
91,
-43,
-66,
79,
-81,
-36,
13,
48,
-62,
93,
98,
-128,
-51,
-48,
-50,
5,
40,
121,
-78,
16,
36,
47,
20,
15,
97,
-98,
-77,
46,
20,
-47,
41,
40,
43,
-83,
64,
121,
-102,
109,
-33,
20,
-77,
-124,
-66,
7,
88,
44,
24,
57,
0,
104,
51,
-96,
-126,
116,
111,
-101,
12,
98,
98,
0,
109,
102,
56,
-120,
-114,
110,
-99,
-89,
-40,
64,
73,
101,
-66,
-3,
34,
16,
46,
-20,
-5,
92,
61,
104,
3,
-49,
-44,
-109,
-115,
32,
-114,
90,
-53,
35,
16,
113,
-51,
-94,
93,
101,
114,
-103,
-122,
-10
] |
Frank Holt, Justice.
ThN action was instituted by the father, appellee, to secure custody of his minor son who, by agreement, had been in the custody of his mother, appellant, since July of 1967 when appellee secured a divorce. At the time of the divorce, the minor, Samuel Richardson, IV, was eight years old and was residing with his parents in El Dorado where appellee and appellant were closely acquainted with another married couple, William and Sara Campbell. The Campbells were divorced in May of 1967, two months prior to the divorce of appellant and appellee. Mrs. Campbell was awarded custody of the Campbell boys, ages 5 and 7. On October 26, 1968, Sam Richardson, III, appellee, married Sara Campbell and they have continued to reside in El Dorado. On January 4, 1970, Norma Richardson, appellant, married William Campbell and almost immediately moved, with her son, to Little Rock where Mr. Campbell was and still is employed. Sam Richardson, III then filed a petition for a change of custody of his son from Norma Richardson Campbell to himself. After a lengthy hearing the chancellor, on July 2, 1970, awarded custody to the appellee-father. On appeal appellant contends for reversal that “there was no showing of a change in circumstances occurring since entry of the original decree of divorce as would justify modifi cation of that decree; and that the welfare of the child is best served by having the custody remain in the mother.” We cannot agree with appellant's contentions.
During the two and one-half years appellant and her son lived in El Dorado following the divorce, the child had the company and close relationship of his father, grandparents, and friends. It appears that the appellee enjoyed very liberal visitation rights and was seeing his child one or two nights during the week and also on the weekends when they attended church together regularly. Immediately following the divorce, as before, Sammy also spent a great deal of time, including vacations, with his paternal grandparents; however, this relationship was gradually curtailed. During the four and one-half months that Sammy resided with appellant in Little Rock, he spent about one weekend a month in El Dorado with appellee.
Subsequent to her divorce, it appears undisputed that appellant had an affair with Mr. Campbell, her present husband; however, nothing of this relationship was ever revealed to Sammy. She stated that when Mr. Campbell was in her home it was at the invitation of Sammy and that he had shared Sammy’s bedroom with him. The appellee adduced evidence that Mr. Campbell’s car was frequently observed at appellant’s house late at night and early in the morning. There was also evidence presented that appellant had a clandestine affair with a married man, a co-employee at a local mental health center, with the expectation of eventual marriage.
Upon appellant’s marriage to Mr. Campbell, she, her husband, and Sammy resided in one of the nicest apartment complexes in Little Rock. Appellant secured employment as a medical secretary and was at home within thirty minutes after her son’s school hours. An experienced babysitter attended him until she arrived. The stepfather, who had suffered financial reverses, was repaying his debts from an estimated $18-20,000 per year income and expressed a strong desire that appellant retain custody of Sammy. There was evidence that appellant and the stepfather were devoted to Sammy and spent a great amount of time' alid effort in attempts to help him adjust to his new surroundings by assisting him in his studies and affording him a comfortable home and recreational activities. However, Sammy did not adjust to his new environment; in fact, there was a drastic drop in his school grades. In El Dorado he had received “A’s” and “B’s” whereas during the four and one-half months he was in Little Rock he received mostly “D’s” or failing grades. Also, Sammy was late to school 14 times.
Dr. Donald Martin, a counselor in psychology, at the request of appellee, saw Sammy on February 14, 1970, to determine his emotional problems. This witness stated that he also forwarded a drawing ‘test to Sammy on May 2, 1970. According to Dr. Martin, Sammy was depressed because of anxiety which affected his ability to concentrate and also, to ignore what goes on around him and that these difficulties would cause his school grades to drop. He further stated that the testing showed Sammy had a very deep attachment for his father who showed warmth and understanding and that he was fearful of his mother, mainly that she would harm his father. He stated that Sammy needs someone who accepts, understands, and loves him so that he can get his confidence built up; that Sammy must be stabilized as quickly as possible; and that his father would be the one to fulfill his son’s needs.
Dr. Patrick Caffey, a clinical psychologist with a PhD, testified that Dr. Martin conducted a very “limited” evaluation and is not trained to work with children; however, that all the tests given by Dr. Martin were recognized in the field of psychology with the exception of one. Dr. Caffey stated that the two and one-half-hour testing session conducted by Dr. Martin with Sammy only was inadequate; that generally six or seven series of tests are given before a competent diagnosis can be made and only then after adequate consultation with the child and both parents. Dr. Caffey further stated that he was acquainted with the parties; that he was a friend of appellant’s; that he had seen Sammy casually on two or three occasions when the child was with appellant; that the child did not seem distressed; that he seemed overly affectionate; and that there was nothing to suggest any need for counseling the child. He further stated that he was familiar with the school system in El Dorado and in Little Rock; that the Little Rock school system was more difficult than El Dorado’s; and that following the change of schools the drop in Sammy’s grades could be expected until he adjusted.
Appellant, her present husband, parents, and numerous friends testified that appellant and her son had a very close mother-son relationship and her witnesses said that they had observed nothing detrimental to his welfare nor anything that would indicate the boy was not adjusting to his change in environment.
Numerous witnesses attested to appellee being a respected and successful businessman; a church and civic leader; an exemplary father who spent time with his son by assisting him in his school studies and participating with him in such recreational activities as baseball, golf, and horseback riding.
Appellee’s present wife, the stepmother who is a school teacher, testified that she wanted Sammy in her home; that her two boys, aged 8 and 10 at the time of the hearing, were compatible with Sammy; and that she would no longer work after her expected child was born within a few months.
According to the transcript of an in-chambers proceeding in which the chancellor questioned Sammy, by agreement and in the presence of counsel for each of the parties, Sammy testified that, although he loved his mother, he preferred to live with his father.
An appeal from the chancery court is reviewed de novo; however, the decision of the chancellor will be affirmed unless it is clearly against the preponderance of the evidence. Hampton v. Hampton, 245 Ark. 579, 433 S. W. 2d 149 (1968).
Appellant correctly asserts that the rule to be ap plied in suits seeking a modification of a custody order is set out in Myers v. Myers, 207 Ark. 169, 179 S. W. 2d 865 (1944). There we said:
“* * # While there is continuing authority in the court granting a decree of divorce to revise or alter orders contained in such decree affecting the custody and control of the minor children of the parties, such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order, which changed circumstances, when considered from the standpoint of the child’s welfare, are such as to require or justify the transfer of custody from one parent to the other.”
Further, in 27B C. J. S. Divorce § 317(2) it is stated:
“* * # The mere fact that conditions have changed since the divorce of the parents is insufficient in itself to warrant a modification of the custody order. Therefore, it is insufficient to establish some change in circumstances or a slight change in conditions; there must be a showing of material, permanent, and substantial change in the circumstances or conditions of the parties, affecting the welfare of the children to a substantial or material extent, the two issues being closely intertwined.”
However, in making this determination the best interest and welfare of the child are the paramount considerations. Holt v. Taylor, 242 Ark. 292, 413 S. W. 2d 52 (1967). Sammy, the twelve-year-old boy, testified that, although he loved his mother, he wanted to live in El Dorado, and that he felt he would receive better care from his father and stepmother. In Aaron v. Aaron, 228 Ark. 27, 305 S. W. 2d 550 (1957), we quoted with approval:
“* # # the wishes of the children were consulted, and, while their preference is not of controlling importance, it is a circumstance which cannot be ignored * #
Furthermore, in Beene v. Beene, 64 Ark. 518, 43 S. W. 968 (1898), we said:
“* * * The elder of the boys, now about nine years old, has probably arrived at that age when a father’s peculiar character of oversight and control may begin to be more necessary than the mother’s * *
We think this reasoning is applicable to the case at bar.
In Qualls v. Qualls, 250 Ark. 328, 465 S. W. 2d 110 (1971), a case involving an appeal from an order granting custody of a nine-year-old boy to his father, we affirmed and said:
“For reversal the appellant relies principally upon the law’s inclination to favor the mother in custody cases involving very young children. That principle, however, loses some of its force as the child grows older and is not so strong in the case of a ten-year-old boy as it would have been much earlier in the child’s life. Moreover, the trial judge saw fit to award custody to the father in spite of the rule in question. We view this case much as we did the situation in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500 (1958) where we said: 'We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, ..as well as their testimony, their apparent interest and affection, or lack of affection for the child. Under our oft repeated rule that we will not disturb the findings of the chancellor unless they are clearly against the preponderance of the evidence, we affirm this temporary order.’ We are of a similar opinion in the case at bar.”
Likewise, in the case at bar we certainly cannot say that the chancellor’s findings are against the preponderance of the evidence.
Affirmed.
Byrd, J., dissents. | [
48,
108,
-12,
44,
26,
32,
10,
28,
123,
-117,
-25,
-45,
-85,
115,
84,
121,
31,
43,
80,
104,
-109,
-77,
87,
96,
-16,
-13,
-15,
-41,
-78,
94,
-25,
87,
76,
48,
-54,
-45,
98,
-38,
-25,
20,
2,
-127,
-85,
101,
-40,
6,
52,
107,
82,
15,
65,
-98,
-13,
44,
30,
-48,
44,
42,
-33,
-68,
-40,
58,
-102,
28,
79,
22,
-77,
-58,
-90,
-124,
88,
106,
-40,
57,
8,
-20,
115,
-74,
2,
116,
78,
-115,
-119,
96,
98,
-127,
-19,
-9,
-8,
8,
78,
46,
61,
-26,
-110,
89,
43,
65,
-65,
-68,
108,
-108,
-117,
-2,
-30,
5,
29,
36,
40,
-50,
-42,
-111,
-115,
40,
4,
3,
-29,
97,
32,
116,
-53,
-78,
92,
71,
115,
-109,
-122,
-38
] |
J. Fred Jones, Justice.
This is a workmen’s compensation case involving injury and subsequent death of Jesse K. Willis as a result of an automobile collision. The single question presented is whether the injuries sustained by Mr. Willis grew out of, and occurred within the course of, his employment as Chief of Police of the City of Dumas in Desha County, Arkansas. The collision occurred in Jefferson County while Chief Willis and his wife were in route from Dumas to Pine Bluff. The Workmen’s Compensation Commission found that the accidental injuries did not arise out of and occur within the course of the employment, and the circuit court affirmed. On appeal from the judgment of the circuit court, the appellant relies upon the following points for reversal:
“There is no substantial evidence in the record sufficient to support the judgment of the court and the opinion of the full Commission and said judgment and opinion were based on surmise and conjecture.
The court erred as a matter of law in failing to award benefits to which he was entitled.”
The burden rests on the claimant to prove by a preponderance of the evidence before the Commission, that he is entitled to compensation benefits under the law. Pruitt v. Moon, 230 Ark. 986, 328 S. W. 2d 71. And, if there is any substantial evidence to support the decision of the Commission, the courts must affirm. This rule has been stated so often that citation of cases would add volume without value to this opinion.
The Arkansas Workmen’s Compensation Law only covers accidental injury and death arising out of and in the course of employment. Ark. Stat. Ann. § 81-1302 (d) (g) (Repl. 1960).
Ark. Stat. Ann. § 81-1305 (Repl. 1960) provides, in part, as follows:
“Every employer shall secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment. . .”
The burden of proof is on a claimant to show that injury or death of an employee was the result of an accidental injury that not only arose in the course of employment, but in addition that it arose out of or from the employment. Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S. W. 2d 834.
In Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S. W. 2d 845, this court adopted the rule laid down in an opinion by Chief Justice Cardozo in the 1929 New York case of Mark’s Dependents v. Gray, 167 N. E. 181. This rule was quoted again with approval in Brooks v. Wage, 242 Ark. 486, 414 S. W. 2d 100, and as stated in Lavender, is as follows:
“The decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils. * * * We do not say that service to the employer must be the sole cause of the journey, but at least, it must be a concurrent cause. * * * and sufficient within itself to occasion the journey.”
Applying the above rules of law to the evidence in the record before us, we are of the opinion that there is no substantial evidence that Chief Willis’ death grew out of, or occurred within the course of, his employment as Police Chief of the City of Dumas. The style of this case, as carried in the transcript and briefs, is slightly confusing, but since the identity of the claimant is immaterial to the question presented, we also refer to the decedent as the claimant and the appellant.
The record reveals the following facts: In July, 1968, Jesse K. Willis was Chief of Police of the City of Dumas and was also a deputy sheriff of Desha County. His regular working hours as Chief of Police were from 8 a.m. to 5 p.m., but he was on call at all times! Chief Willis lived in a rented house in Dumas with his wife and his only child, a son Jesse D. Willis, who was serv ing in the Armed Forces at the time of Mr. Willis’ injuries. Before becoming Chief of Police at Dumas, Chief Willis had served on the Pine Bluff Police Force and he and Mrs. Willis still owned their home in Pine Bluff, and made frequent trips from Dumas to Pine Bluff at the end of his regular workday, and on weekends. Mr. and Mrs. Willis were on their way to Pine Bluff on July 22, 1968, when they were injured in an automobile collision and from which injuries they both died.
As specific background for the claim, the evidence of record is to the effect that on July 10, 1968, one Mose Martin, a resident of Pine Bluff, had been fined on a misdemeanor conviction in the municipal court presided over by the Mayor of Dumas, and had escaped from a prisoner work detail while working out his fine on the streets of Dumas. The Mayor of Dumas told Chief Willis to issue a warrant for the arrest and return of Martin. Chief Willis issued the warrant and placed it in or on his desk, and remarked to some of the other officers that he would bring Martin back to Dumas to work out his fine. After court was adjourned on July 22, 1968, Chief Willis announced that he was going to Pine Bluff. At approximately 6:45 p.m., while driving north on Highway 65, Chief Willis’ automobile was involved in a collision with another automobile during a rainstorm and both Chief Willis and his wife, who was riding with him, received the injuries from which they subsequently died.
The Honorable Billie Free, Mayor of Dumas, testified that Chief Willis had advised him that Martin had escaped and that “he thought the boy was in Pine Bluff.” He says that he instructed Chief Willis to issue a warrant and bring the defendant back to Dumas, but that he did not specify any time that this should be done. He testified that Chief Willis went to Pine Bluff, not on City of Dumas business, four or five times a week. He testified that although Chief Willis was on call duty 24 hours a day, to his knowledge Chief Willis had never gone out of town to return a prisoner who had escaped. He says that Highway 65 is the only route from Dumas to Pine Bluff.
On cross-examination Mayor Free testified that when city prisoners escape he usually issues a warrant and sends it, by the county sheriff or by a state trooper, to the sheriff of the county to which the prisoner has gone. He testified that Chief Willis’ regular work hours were from 8 o’clock in the morning to 5 p.m., but at 5 o’clock he would get into his private automobile and leave. He testified that Chief Willis rented a home in Dumas; that he understood he owned a home in Pine Bluff; that when around 5 o’clock came Chief Willis would “head for Pine Bluff.” Mayor Free testified that he ordinarily requested the Desha County sheriff to deliver warrants to other counties, but that on the afternoon of July 22 Chief Willis told him he was going to Pine Bluff and that he asked Chief Willis to issue a warrant and take it up there and give it to the sheriff. He testified that he wanted the warrant given to the sheriff of Jefferson County and the man brought back, but that he did not tell Chief Willis when to issue the warrant or when to take it to Pine Bluff. Mayor Free testified as follows:
“I sign these warrants, and when I instructed Mr. Willis, I said, ‘I want a warrant issued for this man and brought back to the City of Dumas to work out his fine or pay the fine that was due the City of Dumas.’ Now, I cannot swear that Mr. Willis fixed that warrant that afternoon, and I’m not going to swear to it.”
Mayor Free testified that Chief Willis was not prompt in coming to his office at 8 o’clock unless he was called and that “when the bell rung at 5 o’clock in the afternoon, he got in his car and took off just like that.”
“Q. Did you say that Chief Willis came to Pine Bluff as a matter of practice four or five times, four and five nights a week? I understood you to say that.
A. Well, when I wanted him and couldn’t find him at night, I knew where he was, because he was either in Pine Bluff or Little Rock. It wasn’t his desire. It goes back into'the other side of his family.
Q. But the fact was that he would be in Pine Bluff?
A. Yes, sir.
Q. At night more often than he would be in Dumas?
A. I would back that up a hundred percent.
Q. Would it also be fair to say that, as you put it, when the bell rang at five o’clock he got in his car and got out of there, that he was going to Pine Bluff?
A. I don’t say he was going to Pine Bluff, but his automobile would be headed towards Pine Bluff.
Q. He would at least be leaving Dumas?
A. Yes, sir.”
Mayor Free testified that the City of Dumas only owned one police car and that it did not leave the City of Dumas. He then testified as follows:
“Q. If you sent an officer out of the City of Dumas to transact some business, he would of necessity have to use his own private car, would he not?
A. Ask the question again, sir.
Q. If you were to send one of your officers outside of the City of Dumas to transact some business, then, that officer would have to use his own personal car?
A. I am not going to send him outside the City limits to perform a duty, but Mr. Willis told me that afternoon he was going to Pine Bluff, and I asked him to take this warrant up there. As I stated in the beginning, Mr. Willis was very lax in the collection of his fines.
Q. You had information Mr. Willis had told you he was going to Pine Bluff that afternoon?
A. That’s right.
Q. And you asked him to take this warrant?
A. I told him I wanted this warrant given to the Sheriff or Deputy Sheriff in Jefferson County and have this man brought back.”
The Mayor then testified that he usually signed blank warrants and the Chief of Police filled them in. He testified that he saw the warrant and the carbon copy issued for Martin; that he does not remember the date on the warrant, but the warrant was still in Dumas when Chief Willis was injured.
“Q. You say the warrant had never been served?
A. The warrant was still in the desk when Mr. Willis had the wreck.
Q. Was still in the desk?
A. Yes, sir. If it is there now, I cannot answer that because a new Chief took over.
¶* w
Q. When did you find it?
A. I found it a week after the accident happened, when they brought Mr. Willis to Dumas. I was going through his personal drawer there. It wasn’t locked and the warrant was still right there in the drawer.”
Mr. A. L. Morgan succeeded Mr. Willis as Chief of Police and was on the Dumas Police Force at the time of Mr. Willis’ collision. He testified that he saw the warrant for the arrest of Martin on Chief Willis’ desk sometime between Martin’s escape and the date of the collision. He testified that Chief Willis told him that he would take the warrant to Pine Bluff and get one of the officers in Pine Bluff to pick Martin up. Chief Morgan says that he has looked for the warrant but hasn’t found it since Mr. Willis’ death.
State Trooper Green testified that he investigated the accident in which Mr. Willis was injured; that he talked to Mr. Willis in the hospital at which time Mr. Willis advised that he had started to Pine Bluff but did not say why. He testified that he saw some papers scattered on the floorboard of Mr. Willis’ automobile, as well as some on the front and back seats, but that he does not know what they were.
The testimony of other witnesses adds nothing' to the testimony above set out. There was testimony to the effect that Chief Willis returned to his office on at least one occasion in the two weeks’ interval between the date of his injury and the date of his death, but there is no evidence at all as to what happened to the warrant that had been issued for Martin; and there is no evidence at all that Chief Willis was on his way to Pine Bluff for the purpose of serving the warrant or delivering it to the law enforcement officers in Jefferson County when his injuries occurred.
We conclude, therefore, that there is substantial evidence in the record before us that Chief Willis’ injuries which resulted in his death, did not arise out of or occur within the course of his employment as Chief of Police of the City of Dumas.
The judgment is affirmed. | [
112,
104,
-48,
-52,
9,
-31,
18,
50,
80,
-57,
101,
83,
-25,
-121,
93,
41,
-30,
31,
81,
43,
-9,
-77,
83,
66,
-46,
-73,
-85,
-57,
62,
75,
116,
-36,
79,
48,
-118,
-43,
-27,
76,
-59,
94,
-54,
6,
10,
-19,
89,
-48,
48,
46,
-48,
79,
49,
-98,
-38,
42,
24,
-49,
45,
44,
89,
-82,
-48,
113,
-62,
5,
-2,
16,
-93,
68,
-104,
11,
88,
26,
-40,
49,
80,
-20,
115,
-74,
-62,
-108,
97,
-103,
12,
-30,
98,
34,
17,
-27,
-24,
-104,
14,
-66,
-115,
-89,
-72,
121,
27,
11,
-97,
-107,
90,
20,
14,
124,
-14,
85,
95,
104,
3,
-114,
-76,
-79,
5,
100,
-106,
99,
-53,
-57,
50,
101,
-50,
-30,
93,
5,
83,
-101,
-105,
-109
] |
J. Fred Jones, Justice.
By information filed by the prosecuting attorney in the Sebastian County Circuit Court, Cleveland Donald Umbaugh was charged with the crime of kidnapping, in that he did unlawfully, feloniously and forcibly take Joselyn Howard and carry her, against her will, from one place to another place in this state for the purpose of committing a felony. Umbaugh was found guilty at his trial before a Sebastian County jury and was sentenced by the trial judge to 30 years in the Arkansas Penitentiary. Umbaugh has appealed to this court and relies on the following point for reversal:
“The testimony of Mrs. Birde Smith involved solely a prior bad act allegedly committed by Appellant. This testimony was wholly irrelevant to the charge for which Appellant was on trial, was highly inflammable and its admission resulted in prejudicial error.”
The evidence is in conflict as to the felony intended, but there is little question that one was committed. On the afternoon of March 25, 1970, the prosecuting witness, Joselyn Howard, a 17 year old Negro high school girl (small for her age), was walking along the sidewalk on her way home from school. The appellant, a 22 year old married white man, and his 19 year old white companion, Darrell Wayne Hurley, were sitting in a parked automobile owned by the appellant as Miss Howard passed by. They stopped Miss Howard, took her into the automobile and drove to a secluded area known as “Wildcat Mountain” near the Arkansas River and there they both, according to their own testimony, had sexual relations with her.
Miss Howard, or Joselyn, as she will hereafter be called, testified that as she passed the alley where the automobile was stopped, Hurley got into the back seat as Umbaugh seized and gagged her; forced her into the front seat of the two-door automobile and locked the door. She testified that he then drove to near the Arkansas River where he forced her to disrobe and where he raped her in the front seat of the automobile. She testified that she lost consciousness during the assault by Umbaugh and does not know whether Hurley also assaulted her or not; but that when she regained consciousness, Umbaugh had placed a “rag” around her face and was pulling her from the automobile. She says that Umbaugh then forced her down the hill toward the Arkansas River and said that he was going to throw her into the river. She testified when Umbaugh ordered her to wade into the water, she kicked her shoes off and started running. She says that she ran through some water and fell down and that while she was on her knees in the water, Umbaugh picked up a rock and threw it down near her and directed her on toward the river. She says that she again got away from Umbaugh and Hurley and that they both ran after her and tried to catch her. She says that while they were chasing her they were also throwing rocks at her, but that she finally e'luded them and called the officers from the home of Margaret Cook, who lived in the first house she came to.
Hurley testified for the state. He testified that he and Umbaugh had been drinking beer and that Umbaugh asked Joselyn if she wanted a ride; that when she declined and stated that she only lived a short distance from where they were, Umbaugh got out of the car and ordered Joselyn into the automobile. He testified that Joselyn got into the automobile; that Umbaugh locked the car door and drove to “Wildcat Mountain.” The rest of Hurley’s testimony corroborated that of Joselyn. He testified that he also had sexual relations with Joselyn after Umbaugh did. He testified that Umbaugh then blindfolded Joselyn and led her away from the car and told her he was going to kill her. He testified that Umbaugh then told Joselyn that he was going to throw her into the river and drown her, but that she got away by outrunning Umbaugh.
Umbaugh’s statement given to the police was read in evidence. He admitted that he picked Joselyn up in his automobile; that he and Hurley then took her to “Wildcat Mountain” where they both had sexual relations with her. He stated that she willingly entered the automobile and went with them upon Hurley’s invitation, and that she affirmatively consented to sexual relations.
Birtie Smith testified, over the appellant’s objections, that her brother married Umbaugh’s sister and that while visiting her brother in December of 1968, Umbaugh offered to drive her and her three year old child to their home at Arkoma, Oklahoma, in Umbaugh’s automobile. She testified that instead of driving her home, Umbaugh drove to “Wildcat Mountain” near the Arkansas River and there he forced her to have sexual relations with him by threatening to kill the child. She testified that Umbaugh actually did choke the child until she finally submitted to him.
Umbaugh testified in his own defense. The substance of his testimony was that Joselyn, as well as Mrs. Smith, willingly accompanied him to “Wildcat Mountain” and willingly engaged in sexual relations with him. He admits blindfolding Joselyn and telling her that since they had no further use for her, he was going to throw her into the Arkansas River and drown her. He admits throwing rocks at her and trying to overtake her when she finally escaped. But, he testified that this was all in fun just to torment, tease and scare Joselyn, and that he intended no harm to her at all. He did admit, however, that he was no longer amused by his conduct.
The appellant has cited 15 cases in support of his contention that the trial court committed reversible error in admitting the testimony of Mrs. Smith. We have examined all the cases cited by the appellant and they all turn on the nature and facts of the case being tried, and the purpose for which the evidence of prior acts were offered. We will not attempt here to analyze and distinguish all the cases cited because the various categories attending the most of them were thoroughly dis cussed in the two latest ones; Moore, et al v. State, 227 Ark. 544, 299 S. W. 2d 838; Alford v. State, 223 Ark. 330, 266 S. W. 2d 804.
In Alford, as well as in Moore, the extraneous evidence was offered to show intent in connection with the crime charged, but intent was not an actual element in either case. In Alford the charge was rape, the conviction was for rape, and the penalty was death. There was no question as to identity of the defendant, there was no question as to his intent, and there was no question that his intent was carried out under the persuasive blade of a hunting knife. The defendant did not testify. The facts in Alford bring that case squarely within the rule stated in one paragraph of that opinion, as follows:
“No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading' the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.”
In another paragraph in Alford we also said:
“The rule is designed to protect the innocent, but it is often invoked as a basis for excluding any evidence that tends to show the commission of another offense. We have repeatedly rejected unfounded appeals to the protection of the basic rule of exclusion. If other conduct on the part of the accused is independently relevant to the main issue—relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal—then evidence of that conduct may be admissible, with a proper cautionary instruction by the court. 'While the principle is usually spoken of as being an exception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature competent as showing knowledge, intent or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows that the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competent on the issue under trial.’ State v. DuLaney, 87 Ark. 17, 112 S. W. 158.”
In analyzing the various categories where proof of other crimes is offered in evidence, such as to show motive, to rebut the plea of an alibi, etc.; as to the issue of intent in Alford, we said:
“The issue of intent is theoretically present in every criminal case, and for that reason it is here that we are most apt to overlook the basic requirement of independent relevancy. * * * What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted the exclusionary rule has lost its meaning.
* # *
Quite evidently this category includes the many charges of assault with intent to commit a specified crime, for here the State must prove not merely the assault but also that it was made with a certain intent. Hence, since the accused’s purpose is at issue, proof of other similar offenses is independently relevant. Stone v. State, 162 Ark. 154, 258 S. W. 116; Hearn v. State, 206 Ark. 206, 174 S. W. 2d 452; Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37, Wigmore on Evidence (3rd Ed.), § 357.
*.y. TP IP
Thus our cases very plainly support the commonsense conclusion that proof of other offenses is com petent when it actually sheds light on the defendant’s intent; otherwise it must be excluded. * * *”
In the Moore case, supra, the four defendants were convicted of murder in the perpetration of a robbery. They confessed the crime and led the officers to the scene of the crime and to the decomposed body of their victim. The trial court accepted into evidence testimony that two of the defendants had beaten and robbed another man, under similar circumstances, five days after the murder for which they were being tried. In reversing the conviction for error in admitting the evidence, this court again reviewed the decisions on the point but added nothing to the opinion in Alford. Intent was not an element involved in either case.
In 2 Wigmore on Evidence, 3rd Ed., § 302 the reasoning and basis for the admission of prior criminal acts as evidencing intent is set out in the following language:
“. . . similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defence or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i. e. criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. The general canon of logical inference already examined {ante, §§31, 32) is here applied and illustrated.
Such is the theory of evidencing Intent, as expounded, in various phrasings and for all sorts of offenses, in repeated judicial utterances.
* * *
It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done,—either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the Courts, namely, a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their scheme, that satisfies our logical demand.
Yet, in order to satisfy this demand, it is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance.
4t. «it -ii. w «Ir w
It is just this requirement of similarity which leaves so much room for difference of opinion and accounts for the bewildering variances of rulings in the different jurisdictions and even in the same jurisdiction and in cases of the same offense. Some judges incline to treat the judicial test of probative value as identical with the common-sense test, and to admit such instances as bear a similarity liberally interpreted by the standard of every-day reasoning. Other judges set their faces firmly against every instance which is not on all fours with the offense in issue, regardless of the consideration that justice consists quite as much in protecting the public against evil doers as in showing mercy to those whose guilt has been more or less skillfully concealed. It is hopeless to attempt to reconcile the precedents under the various heads; for too much depends on the tendency of the Court in dealing with a flexible principle. One Court will be certain to exclude everything that is not too clearly probative for even technical quibblers to oppose and sometimes will exclude even that. Another Court will accept whatever has real probative value. Something, however, may perhaps be gained by realizing, as to the former, that it is not the law, nor precedent, nor principle, nor policy, that will account for such rulings, but merely a rooted inclination to take the stricter view and a preference to err in favor of defendants and against innocent victims.”
In the case at bar, intent to commit a crime (rape) is a primary element of the kidnapping charge under which the appellant was tried and for which he was convicted. The prosecuting witness and the appellant’s accomplice testified that the appellant forcibly and without her consent transported her to a secluded area on “Wildcat Mountain” and there put her in fear of her life and ravished her. The appellant testified that the prosecuting witness voluntarily accompanied him to “Wildcat Mountain” and voluntarily submitted to him.
Now, under these circumstances, if the state had proven by the testimony of ten other women that the appellant had also in recent months taken them to this “Wildcat Mountain” against their will and there ravished them, there would be little question but that such testimony would be admissible; not to prove the crime of rape, or as for that matter, to prove that the prosecuting witness was taken to “Wildcat Mountain” by force or against her will, but for the purpose of showing the appellant’s motive and intent in taking he*- to the secluded area on “Wildcat Mountain.”
Hearn v. State, 206, Ark. 206, 174 S. W. 2d 452, was a case in which intent was an element in the crime involved. The defendant in that case was convicted of assault with intent to rape. The prosecuting witness definitely identified the defendant and testified that sometime after 10 o’clock at night she was proceeding alone to her home and “he walked up behind me. I heard somebody starting to speak, I looked up and kept thinking I recognized him and didn’t. He said, ‘How far are you going?’ I said, ‘I live right here.’ That was Mr. Tanner’s house. Then he reached up with his hands and put them around my throat, attempted to choke me, and I screamed. Then he said something as he turned me loose and ran and I don’t know what it was.” The questionable evidence in the Hearn case was the testimony of another woman who testified that about two months previously the appellant had torn a screen from a window and had come to her bedroom where she was sleeping; grabbed her and started to twist her leg and that when she screamed, the defendant ran. Another witness testified that about two months before the act involved in the case being tried, he had seen the defendant one night peeping in the window of the home of the witness’s brother and that he had taken the defendant and turned him over to the officers. This court affirmed the conviction in Hearn and approved the admission of the evidence as to the prior acts. To the same effect is Gerlach v. State, 217 Ark. 102, 299 S. W. 2d 37, where the appellant was convicted of an assault with intent to rape one Mabel Reeder, who was a 12 year old child.
The appellant in the case at bar admitted, both in his pretrial statement and in his testimony, that he was 22 years of age, married and had a little girl of his own. He admitted that he picked up the prosecuting witness whom he had never seen before, and took her in his automobile out to “Wildcat Mountain” and that she was agreeable to, and acquiesced in, everything that happened to her. He does not say what his intent was in picking her up in the first place or in taking her to “Wildcat Mountain.” He does state that his intent in threatening to kill and drown her and in throwing rocks at her was simply to torment, tease and scare her, and he explains his intent in attempting to take her into the Arkansas River was to wash mud from her clothing, as well as his own. He explains his intent in running after her when she finally eluded him, was to get her to return to the automobile so that he could take her home.
Even without the testimony of Mrs. Smith, there was ample evidence to sustain the conviction. The testimony of Mrs. Smith was an anticlimax to what the jury had already heard even before the appellant testified. Yet, the jury only found the appellant guilty as charged and left it to the trial court to fix the punishment when the jury could have sent him to the penitentiary for 99 years. So it would appear from the verdict that the minds of the jurors were not greatly inflamed by the testimony of Mrs. Smith.
It is not a question at this point whether the state should have offered the testimony of Mrs. Smith or whether the trial court should have admitted it. The question is whether the acceptance of the evidence constituted reversible error.
According to Mrs. Smith she is even related by marriage to the appellant and when she accepted his offer to take her to her home in Oklahoma, he took her instead via a “short cut” to “Wildcat Mountain” and there he treated her as he did Joselyn, except he didn’t throw rocks at her and threaten to drown her after he had accomplished his purpose.
We are of the opinion that the testimony was admissible, under all the facts of this case, for the limited purpose it was offered; and that the trial court did not commit reversible error in admitting it under the proper instructions given by the court as to its use and purpose.
The judgment is affirmed. | [
52,
-18,
-24,
-67,
26,
-30,
14,
-72,
-125,
-109,
-12,
82,
-89,
-52,
1,
121,
59,
-17,
85,
105,
-59,
-73,
23,
37,
-80,
115,
121,
-41,
50,
75,
-66,
-11,
93,
112,
78,
-35,
34,
-54,
-27,
90,
-114,
3,
-21,
-4,
-112,
-61,
34,
127,
-120,
15,
97,
-82,
-58,
42,
22,
74,
73,
78,
-45,
47,
74,
19,
-38,
23,
-49,
86,
-93,
-96,
-103,
1,
120,
124,
-47,
49,
0,
-8,
115,
-126,
2,
-12,
77,
-103,
12,
96,
102,
5,
-115,
-13,
-88,
-119,
30,
62,
-104,
-89,
88,
73,
74,
76,
-66,
-43,
114,
-48,
29,
114,
-25,
110,
61,
96,
-50,
-49,
-112,
-79,
-51,
96,
82,
59,
-45,
53,
32,
117,
-51,
-78,
93,
69,
120,
-101,
-121,
-9
] |
George Rose Smith, Justice.
The appellant J. L. Freeman, now an incompetent person acting through his guardian, brought this suit to cancel a deed by which Freeman and his wife, who died before the suit was filed, purportedly conveyed a farm to their son, the appellee Carmie F. Freeman. The complaint asserted that the signatures of both grantors were forgeries. The chancellor found Mrs. Freeman’s signature to be a forgery, but he found Freeman’s signature to be genuine. The correctness of the latter finding is the main issue now before us.
Trying the case de novo, we cannot say that the decree is against the weight of the evidence. It was rather natural for Carmie’s parents to convey the farm to him. He returned from military service in 1947 and thereafter lived on the property with his parents and with his own family. He farmed the land in partnership with his father. The elder Freeman was too old to farm the property actively when he and his wife first conveyed the land to Carmie on November 14, 1966. The validity of that deed is not questioned.
On August 19, 1968, the older couple conveyed the rest of their real property to their other two children. Those two children then learned for the first time about the earlier deed to Carmie. A family dispute arose, but it ended when Carmie and his wife voluntarily conveyed the farm back to Carmie’s parents on September 4, 1968. Only twenty-two days later, however, the elder Freemans ostensibly again deeded the farm to Carmie and his wife. That is the deed now challenged as a forgery.
A handwriting expert testified for the plaintiff that both the grantors’ signatures were forgeries. It was that witness’s opinion that Mrs. Freeman’s signature was a traced forgery while that of her husband was a simulated forgery.
There is cogent proof to the contrary. As we have said, the parents’ conveyance of the farm to the son who had lived and worked with them for almost twenty years was a natural disposition of the property. Carmie testified that his parents signed the deed now in controversy. J. E. Still, the attorney who prepared the deed and took the acknowledgment, testified positively that Freeman signed the instrument in his presence, though Still was not equally certain about Mrs. Freeman’s signature. The deed was kept in a lock box to which the elder Freeman had access—hardly a likely place for Carmie to keep a forged instrument. Upon the record as a whole we do not find the preponderance of the evidence to be contrary to the chancellor’s conclusion that Freeman’s signature was genuine.
That conclusion ais» disposes of the appellant’s remaining contentions. It is argued that since a quitclaim deed does not convey an after-acquired title, Freeman’s deed as a tenant by the entirety did not convey any interest passing to Freeman upon his wife’s subsequent death. That argument is unsound. A deed executed by the husband alone carries his survivorship interest as a present estate, so that the entire title vests in the grantee if the husband does survive the wife. “The alienation by the husband of a moiety will not defeat the wife’s title to that moiety if she survive him; but, if he survive, the conveyance becomes as effective to pass the whole estate as it would had he been sole seized at the time of the conveyance.” Davies v. Johnson, 124 Ark. 390, 187 S. W. 323 (1916).
It is also argued that the deed was invalid if Mrs. Freeman’s signature was forged, because a conveyance of the homestead by the husband alone is void. Hall v. Mitchell, 175 Ark. 641, 1 S. W. 2d 59 (1927). No such contention was made in the plaintiff’s complaint. Moreover, the Freemans relinquished their homestead right by their valid deed to Carmie in 1966, and there is no showing that they occupied the land or otherwise reestablished a homestead right during their twenty-two days of ownership in 1968.
Affirmed. | [
115,
108,
92,
44,
10,
32,
-86,
-72,
115,
-60,
39,
115,
-17,
-58,
20,
45,
97,
45,
80,
107,
-58,
-77,
71,
-95,
-14,
-13,
-13,
-35,
-79,
73,
-28,
87,
76,
52,
-118,
-33,
-26,
-120,
-119,
-48,
78,
-126,
-118,
-27,
-39,
80,
48,
33,
84,
77,
101,
-98,
-9,
46,
61,
87,
-88,
44,
107,
61,
-56,
-72,
-97,
12,
95,
23,
-80,
38,
-98,
13,
-40,
46,
-112,
49,
1,
105,
50,
-76,
-122,
-12,
11,
-101,
9,
118,
98,
24,
-3,
-3,
-72,
-120,
-93,
118,
15,
-90,
-110,
88,
67,
38,
-66,
-99,
117,
16,
42,
-4,
-11,
13,
30,
104,
3,
-113,
-42,
-79,
-91,
56,
-98,
-103,
-17,
-83,
48,
113,
-49,
-94,
93,
103,
49,
-101,
15,
-77
] |
Frank Holt, Justice.
These two cases were consolidated for trial and on appeal. Appellant, First Heritage Life Assurance Company, initiated the first suit by an appeal to the circuit court from the failure of the appellee, Insurance Commissioner, to enter an order after the Commissioner’s hearing concerning appellant’s financial instability. A few days later, the second suit was instituted by the appellee directly in the circuit court alleging the delinquency or insolvency of the appellant and praying for a receivership and liquidation of appellant.
In 1969 an examination of appellant’s business affairs was authorized by the appellee. According to the Examination Report, appellant appeared to be insolvent by $553,859.87. In accordance with appellant’s request, appellee conducted a hearing to determine the accuracy of this Report. Thereafter, the appellant filed a notice of appeal from the Commissioner’s failure to enter an order based upon the hearing which he had conducted. A few days subsequent to the filing of appellant’s suit, the appellee Commissioner responded by filing its order based upon the hearing wherein he found appellant to have a capital impairment of $124,954.84 (after deducting $228,405.03 from the examiner’s figure); revoked its certificate of authority; and ordered that no further business be conducted. At the same time, the appellee instituted the delinquency proceeding (the second suit) by an original action in the circuit court. At a hearing based on the delinquency proceeding, both parties agreed to the consolidation of the cases and to making the transcript of the Commissioner’s hearing the record for both cases in order to avoid duplication of testimony. The court found that the Commissioner’s findings were supported by substantial evidence and, therefore, affirmed. The court then entered an order appointing the Commissioner as receiver of appellant for the purpose of liquidation. From this order favorable to the Commissioner in both cases comes this appeal.
Appellant first contends for reversal that the lower court erred in not ruling the order of the Commissioner to be untimely and void. Ark. Stat. Ann. § 66-2126 (Repl. 1966) provides that the Commissioner shall issue his order within thirty days after the formal hearing. The Commissioner did not issue the order within the thirty-day time period and appellant initiated suit in the circuit court under authority granted in § 66-2127. Under this statute appellant is accorded the right to appeal from the Commissioner’s failure to enter an order; however, this authority does not preclude the Commissioner from taking further action, it merely provides appellant a remedy when a delay exceeds the statutory time limitation. The statute also grants the circuit court authority to require the Commissioner to deposit with the court a complete transcript of all pro ceedings conducted before him in order that the court may review the findings of the Commissioner and affirm such findings if supported by substantial evidence. Appellant could not, by instituting its appeal for a failure of the Commissioner to act, preclude the Commissioner from entering a final order setting out his findings. The Commissioner’s order was not void and the lower court did not err in affirming such order.
Appellant does not assail the circuit court’s authority to uphold the Commissioner’s findings as to the Examination Report if the report is supported by substantial evidence. Appellant, however, asserts that , when the separate question of delinquency or insolvency was put in issue by the original action in the circuit court, the delinquency and receivership issue must be determined by a preponderance of the evidence. Appellant contends for reversal that the court applied the lesser quantum of proof, the substantial evidence rule, to the separate delinquency proceeding.
We first review the evidence to determine if there is substantial evidence to support the lower court’s affirmance of the Commissioner’s Order. Appellee Commissioner agrees that prior to January 1, 1968, appellant was not required by statute to maintain any reserve based on life insurance policies since it issues stipulated premium policies. He determined, however, that appellant had contractually obligated itself to maintain such reserves by issuing policies containing standard non-forfeiture tables and cash values with language stating that the reserves would be calculated according to certain agreed computations. Appellee Commissioner contends that appellant is contractually obligated to maintain life policy reserves in the amount of $101,-826.00 which constitute a liability. The accuracy of this amount is not controverted by appellant if it is required to maintain this item as a reserve. Appellant merely argues that it was not contractually obligated to maintain any reserves on life insurance policies issued prior to January 6, 1968 since it is a stipulated premium company. We do not agree. A copy of the insurance policy was submitted as an exhibit. A reading of the policy clearly shows that the Commissioner’s determination was supported by the policy which contains a table entitled “TABLE OF CASH, LOAN AND NON-FORFEITURE VALUES.” It further states:
"* * * and the legal reserves for this policy, shall be computed according to the Commissioner’s 1941 Standard Ordinary Table of Mortality with interest at the rate of three and one-half per cent per annum and on the assumption that deaths during any policy year occur at the end of such year, with the exception that the net single premiums used for the calculation of the periods of extended term insurance are based on rates of mortality equal to one hundred and thirty per cent (130%) of the said mortality table. The policy reserves shall be computed in accordance with the Commissioners Reserve Valuation Method.”
Also, the policy on its face states it is issued on a “legal reserve basis.” As previously indicated, appellant agrees that the figure of $101,826.00, representing life policy reserves, is correct if it was proper to allocate it as a liability. We think there is ample substantial evidence to support the Commissioner’s finding that this figure is properly a liability item.
Another significant item is $88,566.78 which was established as a claim reserve and allocated as a liability by the Commissioner. This sum represents expected future payments to policy holders based upon their disability claims. Each of the disability claims had been processed and approved for payment by appellant. In fact, payments had been made periodically by the appellant on these disability claims. This figure was determined by actuaries, one representing appellant and one the Commissioner, based upon disability tables. Their testimony appears uncontradicted. Appellant’s witness acknowledged that disability income claims are generally considered reserves by actuaries. We agree that substantial evidence supports classifying this item as a liability. Nor do we find the court erred in holding that substantial evidence supports the Commissioner’s finding that the sum of $12,155.57 is a liability item. This is a reserve for disability claims in controversy or in progress. We are of the same view with reference to $4,188.16 being classified as a liability item. This represents prepaid premiums on several policies.
Appellant also asserts the court erroneously affirmed the Commissioner’s exclusion of certain assets claimed by appellant. It is contended that the court should have restored $5,657.25 to the value of appellant’s real estate; that $2,493.00 additional should be allowed on the value of appellant’s common stock; and that $1,790.34, representing accrued interest on certificates of bank deposits, was improperly disallowed as an asset. Even if appellant be correct and these amounts be restored as assets, we cannot say that the court erred in holding that the appellee Commissioner’s finding of capital impairment is not supported by substantial evidence.
Now we turn to appellant’s assertion that the court erred in the insolvency or delinquency proceeding (the original action filed in the circuit court) by failing to make that determination by a preponderance of the evidence. It is true that in an action originally initiated in the circuit court, the court’s determination of a fact issue must be based upon a preponderance of the evidence. In oral argument appellee Commissioner agreed as to the correctness of this rule. An insolvency proceeding brought by a Commissioner is no exception to the above stated rule. In this instance, however, the parties agreed to consolidate the cases and use the transcript developed at the Commissioner’s hearing as the record in both cases. No additional evidence was adduced before the trial court. In the circumstances, it certainly must be said that since the findings of the Commissioner as to capital impairment are based upon substantial evidence, as held by the trial court, the Commissioner’s findings, therefore, constitute an unrebutted prima facie case and preponderate in the separate delinquency proceeding. Even if we disregard the Commissioner’s findings, in our view the record in the delinquency proceeding is amply sufficient to sustain the trial court’s judgment as a matter of law.
The trial court did not err in holding in the first case there was substantial evidence to support the Commissioner’s finding that appellant was insolvent; nor did the court err in holding that the appellant was subject to receivership in the second or the original action instituted by appellee in the circuit court.
Affirmed. | [
-80,
127,
-100,
60,
8,
-30,
58,
2,
67,
-30,
37,
83,
-67,
-58,
5,
111,
-2,
41,
-27,
106,
-42,
-77,
19,
42,
-46,
-13,
113,
-121,
-79,
95,
-28,
-33,
76,
48,
10,
-43,
-26,
8,
-59,
26,
6,
8,
-101,
96,
-39,
80,
48,
107,
82,
11,
117,
-113,
-21,
46,
29,
-54,
73,
44,
-53,
-7,
80,
-80,
-118,
5,
127,
16,
49,
38,
-102,
71,
88,
14,
-104,
-79,
8,
-7,
114,
54,
6,
68,
107,
-39,
12,
34,
99,
1,
1,
-17,
-72,
-120,
62,
126,
-97,
-122,
-78,
73,
11,
1,
-66,
-99,
108,
20,
-121,
-4,
-21,
-43,
89,
44,
3,
-118,
-106,
-93,
-17,
102,
-100,
27,
-10,
-61,
52,
112,
-56,
-14,
93,
23,
55,
-37,
-42,
-110
] |
Conley Byrd, Justice.
This eminent domain proceeding was before this court in Arkansas State Highway Commission v. Lemley, 247 Ark. 201, 444 S. W. 2d 692. On retrial the jury fixed just compensation at $12,000. For reversal, the Highway Commission relies upon the following points:
“1. The trial court erred in refusing to strike the before the taking value testimony and the resulting damage testimony of Mr. Roy Jackson on the basis that he gave no substantial evidence upon which to predicate his land values.
2. The trial court erred in refusing to strike the testimony of Mr. Jackson with reference to drainage damages that were not plead as special damages.
3. The trial court erred in refusing to strike that portion of Mr. Jackson’s testimony as to the east 40 acres of land on the basis that this is a separate tract of land; that there was no taking from this portion of land; and that any impairment of access to a separate tract would not be compensable.
4. The trial court erred in allowing Judge Tom Scott to testify as to the cost of acquiring new access.
5. The trial court erred in refusing to strike Mr. C. V. Barnes’ testimony with reference to damage based upon circuity of travel, a non compensable element.
6. The trial court erred in refusing to strike Mr. Barnes’ testimony with respect to damages to the separate tract.
7. The trial court erred in refusing to strike Mr. Barnes’ inconsistent and improper testimony relating to damages to the remaining land wherein he valued the land in the taking as a separate unit of value, damaging the remaining lands on a basis of their value to the whole.
8. The trial court erred in giving appellees requested instructions A and B.
9. The verdict is not supported by substantial evidence and is excessive.”
Points No. 3, No. 6 and No. 8 were held adversely to appellant upon the first appeal and have become the law of the case.
Point No. 4, upon substantially similar testimony, was ruled adversely to appellant in Arkansas State Highway Commission v. Darr, 248 Ark. (May 18, 1970), 453 S. W. 2d 719.
Neither do we find merit in Point No. 2. Identical testimony about the drainage problem was elicited on the first trial—thus putting appellant upon notice of the nature of the claim. Furthermore, the drainage problem was restricted to acknowledged residual lands and was properly admitted as part of the claim for severance damages.
Mr. Roy Jackson testified that, he and Lemley bought these lands in 1945. After qualifying as an owner and as an expert on land appraisals, Mr. Jackson valued the 120 acres of Section 33 at $3,200 before the taking and an after value of $1,500. He valued the 40 acre tract in Section 34 at $8,000 before and $3,000 after the taking. Because Jackson placed a before value of $200 per acre on the woodland and did not support this value by comparable sales of woodland, appellant now argues that his valuation is without substantial support. We find no merit in this contention. Jackson, among other things, compared the fertility of woodland areas with that of surrounding farm lands and testified about cost of clearing. No question is raised about his valuation of the open lands.
Mr. C. V. Barnes testified that before the taking the 120 acre tract abutted upon Highway No. 64, but after the taking, the property was left in two separate and distinct parcels of land. The owners can not cross the Interstate to reach the south 40 acres from the north 66 acres. The 66 acres left on the north side of the Interstate is four and a half miles farther from Morrilton than before the Interstate construction. It is also a mile and a half further from a paved road than before construction. Furthermore, there is no public access to the north 66 acres since the taking;. Based upon his experience and study of the market in the area, Mr. Barries arrived at a before value of $30,000 for the 120 acre tract and an after value of $18,000.
On cross-examination Mr. Barnes stated that he did not place a separate value on the 40.8 acres south and west of the Interstate in arriving at his after value. He considered it one parcel before the taking and as one unit after the taking. Although the 40.8 acres still had access to Highway 64 and was severed from the north 66.48 acres by the Interstate, he did not analyze the south 40.8 acres by itself. On the whole remaining 107.28 acres he ascribed $170 per acre in round figures.
We agree with appellant that the trial court should have struck that portion of Barnes’ testimony relating to the damage to the remaining lands. Ordinarily non-contiguous lands cannot be valued as a unit. The exception is upon a showing of a unity of use. See Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375 (1908). Barnes’ testimony here demonstrated that the north 66.48 acres was left without public access and that even if such access were provided there would still be a considerable circuity of travel to get from the south 40.8 acres. In view of the fact that Barnes described the highest and best use of the lands before the taking as an owner occupied and operated agricultural unit and the fact that he described the south portion as a relatively small unit, we find nothing in his testimony by which one could say that the two parcels constituted a unit for valuation purposes after the taking. Furthermore, since the south 40.8 acres still has the same access that it had before, it certainly has not sustained any damage from lack of public access. Yet the method of averaging values used by Barnes would ascribe also damages to the south 40.8 acres for lack of public access.
The cardinal, rule in eminent domain cases involving partial takings is the difference in values of lands before and after the taking. The per acre value of agricultural lands on either side of an Interstate may be and usually is as much after the taking as before the taking. However, this does not mean that two separated parcels operated as a unit are worth as much per acre because of circuity of travel, access and location of improvements. This is particularly true of relatively small plots.
Appellant also argues that Barnes’ testimony with reference to circuity of travel should have been stricken. We find no testimony of Barnes that ascribes damages to circuity of travel. All we can find is Barnes’ statement that the north 66 acres after the taking is farther from the City of Morrilton and a paved road. These are matters that ordinarily affect value of lands and we hold that the trial court did not err in so ruling.
Reversed and remanded.
Fogleman, J., dissents. | [
112,
-2,
-79,
125,
8,
-64,
24,
-116,
65,
-93,
-26,
83,
-89,
-122,
24,
43,
-29,
93,
112,
105,
70,
-78,
71,
83,
83,
-13,
123,
69,
61,
77,
-28,
-9,
76,
48,
-62,
5,
69,
64,
77,
90,
-50,
-118,
-103,
100,
-55,
68,
56,
47,
6,
15,
49,
-113,
-21,
47,
28,
-61,
108,
44,
79,
56,
72,
-72,
10,
7,
95,
5,
49,
-90,
-104,
3,
88,
104,
-112,
57,
9,
-40,
119,
-74,
-122,
-60,
9,
-101,
12,
98,
98,
0,
77,
-49,
-104,
-116,
14,
-1,
13,
-90,
-102,
88,
75,
71,
-106,
-108,
-23,
70,
78,
-2,
-28,
-51,
92,
44,
3,
-49,
-106,
-95,
-83,
44,
-108,
19,
-53,
7,
-112,
116,
-49,
-29,
93,
7,
51,
-101,
-113,
-75
] |
John A. Fogleman, Justice.
This is a sequel to Arkansas Highway Commission v. Bane, 247 Ark. 143, 445 S. W. 2d 106. We reversed a judgment fixing the amount of the landowner’s compensation for a right-of-way taking and remanded the case for a new trial. We reversed because we found that the testimony of the landowner did not afford substantial support for the jury verdict.
On retrial, the value testimony of two witnesses on behalf of appellee was stricken on motion of appellant, leaving the verdict on her behalf dependent entirely upon the testimony of Sammy Carl Plummer, the mayor of Plummerville. Appellant asks that we reverse this judgment because: (1) the trial court refused to strike from Plummer’s testimony $6,000 of his damages relating to one tract and $1,800 to the other tract remáining after the taking for the reason that his basis was what he would give for the lands; (2) he gave no substantial evidence to support his testimony
Plummer testified that a tract of 43.6 acres left south of Interstate Highway 40, after 18.4 acres were taken, was worth only $50 per acre . after the taking. Appellant moved to strike $6,000 of the total damage figure because it contended that the witness based his valuation of the lands after the taking on what he would give for it instead of what it would bring on the market. The contention is based on Plummer’s answer to a question on cross-examination, asking why he arrived at a difference of $150 between the overall value of $200 per acre he had placed on the tract before the taking and his valuation of this parcel after the taking. The interrogation which preceded the motion went as follows:
A. That’s what I told Mr. Hayes when he asked me. He is one of your appraisers. He come to me on nearly all of these tracts and asked what I would give for them. I told him at the time—
Q. That’s your appraisal of the after value— what you would give for it?
A. He asked what I would give for it.
While Plummer’s answers may not have been fully responsive to the examiner’s questions, they hardly establish the use of an improper basis for valuation by Plummer. He simply stated that one of appellant’s appraisers had asked him what he would give for the tract and that he gave him the figure he had stated in his testimony. Plummer had lived in Plummerville for 64 years. He had been the county clerk for three years, had been in the tax assessor’s office for four years, in the tax collector’s office for two years, and had served on the county equalization board for six years. He had been familiar with the tract for 20 or 30 years. He said that he was generally familiar with land values in and around Plummerville. He testified that after the taking this tract was completely isolated without any public vehicular access. The closest approach to it, without crossing lands of others, was one-quarter of a mile away, according to him. He stated that he figured no one would want the land isolated back over on top of a mountain. In his opinion the use of the land as a cattle operation had been ruined.
The motion to strike his testimony that an 18-acre tract left north of the highway was worth only $100 per acre after taking was based upon his saying that is what he would give for it in response to a cross-examination query if he had any reason for saying it was worth only that amount. Plummer had previously testified that there was not very much of it that anybody would want. The motion to strike this “after value” testimony was denied by the court with the comment that Mayor Plummer was a lay witness.
Appellant’s motion went only to the striking of the values given by Plummer for the value of lands remaining after the taking. His testimony as to the value of the land before the taking would have been left intact. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S. W. 2d 874; Arkansas State Highway Commission v. Phillips, 247 Ark. 681, 447 S. W. 2d 148.
The witness was permitted to testify as a non-expert, who said that he knew the value of the land. He testified that he was generally familiar with the values of lands in the vicinity of Plummerville and that a lot of people sought his opinion on the subject. He lived within a quarter of a mile of the property. Such witnesses are permitted to express their opinions as to values. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30; Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331 S. W. 2d 705. Plummer’s competency as a value witness was not questioned. Ap pellant had the burden of showing that there was no reasonable basis for his opinion. Arkansas State Highway Commission v. Dean, 247 Ark. 717, 447 S. W. 2d 334; Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702.
We do not feel that appellant met its burden. The mere fact that the witness stated that the value ascribed to the remainder was what he would give for it is not sufficient to show that he would give more or less than market value or to render his testimony inadmissible. Arkansas State Highway Commission v. Pruitt, 249 Ark. 682, 460 S. W. 2d 316. If this were the sole basis for the testimony of the witness, or if he were clearly not a competent witness on land value, we might consider this answer in a different light. Since neither premise exists here, we find no error in the refusal of the circuit judge to strike his testimony.
Appellant argues that since Plummer based his opinion on a single sale of lands he had made earlier in the immediate vicinity and his experience as a public official, but did not know of or investigate other sales in the vicinity, it is clear that he had no knowledge of the market value of lands. Accordingly, says appellant, there was no substantial basis for his testimony and its motion to strike his value testimony for that reason should have been granted. Of course, his knowledge or lack of knowledge of sales of other lands was to be considered in evaluating his credibility and the weight to be given to his testimony, but would not render his testimony insubstantial as a matter of law. Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354. In order for us to hold otherwise, the matter elicited on cross-examination must have demonstrated that Plummer had no reasonable basis whatever for his opinion. Arkansas State Highway Commission v. Carter, 247 Ark. 272, 445 S. W. 2d 100. We cannot say that this was demonstrated.
The judgment is affirmed. | [
114,
-20,
-95,
46,
8,
64,
58,
-120,
64,
-95,
118,
91,
-17,
-50,
16,
47,
-90,
89,
-11,
105,
86,
-77,
71,
99,
66,
-13,
81,
69,
-79,
77,
-26,
-43,
78,
56,
-54,
-107,
96,
-32,
-57,
84,
-114,
-122,
-102,
108,
-55,
-60,
52,
47,
86,
11,
49,
-122,
-13,
46,
29,
-53,
73,
44,
111,
57,
64,
56,
-70,
13,
-49,
5,
17,
36,
-104,
67,
-40,
46,
-112,
53,
9,
-24,
115,
-74,
-126,
-44,
11,
-103,
12,
-22,
103,
1,
21,
-57,
-72,
-120,
14,
-1,
-115,
-90,
-48,
72,
67,
105,
-73,
-99,
120,
64,
70,
-2,
-10,
13,
93,
108,
3,
-50,
-42,
-77,
-87,
60,
-104,
67,
-21,
7,
52,
116,
-49,
-30,
93,
69,
50,
-101,
-113,
-103
] |
George Rose Smith, J.
This is the third appearance in this court of a chain of litigation that has been in progress between the appellant Bass and the appellee Willey and others for some eighteen years. The dispute is over the ownership of a tract of land, originally formed by accretion, that now lies at some distance north of the Arkansas River, in Arkansas County. This appeal is from a decree finding that the appellant Bass has no claim to the land in controversy (and thus, by implication, recognizing the ownership of the appellees, who derive their title from C. F. Willey, now deceased).
The earlier phases of this litigation bear upon the present appeal and must be briefly reviewed. In 1946 C. F. Willey, in a suit to enjoin Bass from cutting timber, obtained a default decree finding that Willey was the owner of Section 1, Township 8 South, Range 4 West, and “all accretions adjoining or contiguous thereto.”
In 1947 Bass was cited for contempt, for an asserted violation of the court’s injunction. Bass defended the contempt citation by attempting to prove that the 1946 decree was a nullity. It was Bass’s theory then, and it is his theory today, that long ago—perhaps as far back as the 1880’s—the tract that had been originally surveyed by the Government as Section 1 was completely eroded away by a gradual northward movement of the Arkansas River, which eventually crossed all of Section 1 and ate away not only that section but also most of Section 36, Township 7 South, Range 4 West, lying just north of Section 1 and being later owned by Bass.
Bass has attempted throughout the litigation to prove that the river, after having reached its line of maximum progress to the north, then gradually retreated southward and re-created land that re-emerged not as Section 1, which had become nonexistent, but as an accretion to Section 36 and to other lands that Bass now owns along the line of the river’s farthest advance to the north. Upon this hypothesis Bass contended that the 1946 default decree, in referring to Section 1 and its accretions, actually described no land at all, so that the decree was void.
The chancellor rejected Bass’s attack upon the 1946 decree. Upon the first appeal we affirmed the chancellor’s action but confined our decision to a single point, holding that Bass was estopped to deny the existence of Section 1 for the reason that Bass himself had recognized the existence of the section by having purportedly conveyed it to Willey in 1930. Bass v. Willey, 216 Ark. 553, 226 S. W. 2d 980.
Soon after our decision upon the first appeal Willey again instituted contempt proceedings against Bass. By filing a counterclaim Bass became the real plaintiff in the case; that is still his position. He contends that even though he is estopped to question the existence of Section 1 the estoppel does not extend to the accretions thereto, because those accretions were not mentioned in the 1930 deed that gave rise to the estoppel. Hence Bass insists that he be permitted to prove that the tract now in dispute accreted not to Section 1 but to the more northerly land owned by Bass.
This contention was at first rejected by the chancellor, upon a plea of res judicata. On the second appeal we reversed that decree, holding in essence that whether this tract accreted to Section 1 or to Bass’s lands was an issue of fact upon which Bass had never had his day in court. Bass v. Willey, 227 Ark. 1025, 304 S. W. 2d 943.
On remand the parties built up an extensive record, with many exhibits, in their efforts to trace the wanderings of the Arkansas River since this area was surveyed by the Government in 1819. It is still Bass’s contention that Section 1 was eaten away long ago by the northward movement of the river, that when the river retreated southward even past its 1819 channel the land in dispute was formed as an accretion to lands now owned by Bass, and that the estoppel stemming from Bass’s 1930 conveyance of Section 1 does not preclude him from asserting that the tract in controversy was never an accretion to Section 1. The chancellor, by the decree now on review, dismissed Bass’s claim to the land.
The facts are not simple. That they may be more easily understood we are inserting in this opinion, as Figure 1, a greatly simplified reproduction of one of the principal exhibits in the record.
Both Section 1 and Section 36, as surveyed by the United States in 1819, are shown in heavy lines. The irregular shape of these small fractional sections was due to the fact that in 1819 they were bounded on the west by the Arkansas River and on all other sides by Spanish land grants that had been made before the Louisiana Purchase. The tract in dispute, marked by the corners
ABC®, is also shown in heavy lines. It should he added that although the common boundary between Section 36 and Section 1 appears to extend all the way to the western border of the land in dispute, the testimony indicates that the northwest corner of Section 1 is actually about 180 feet east of the western edge of the land in dispute, so that the land in dispute is contiguous to Section 36 for a distance of about 180 feet.
Deferring for the moment the appellant’s arguments with respect to the 180 feet of contiguity just mentioned, we are of the opinion that Bass has not succeeded in escaping the estoppel that came into being in 1930 when he undertook to convey Section 1 to Willey. Even though that deed made no express reference to accretions, we held in Towell v. Etter, 69 Ark. 34, 59 S. W. 1096, 63 S. W. 53, in the opinion on rehearing, that a conveyance of a tract of land by its legal description carries the accretions thereto unless they are specifically excepted. Hence it is not possible to limit Bass’s estoppel to the original boundaries of Section 1, for the reference in his deed to Section 1 must be taken to be a reference to the accretions as well.
Moreover, the 1946 default decree confirmed Willey’s title to Section 1 and “all accretions adjoining or contiguous thereto.” As a result of Bass’s estoppel Section 1 must be deemed to have existed, as far as the litigants and the court were concerned. We must attach some meaning to the explicit decretal reference to accretions. Unless that reference was meant to encompass the greater part of the tract in dispute (all except the west 180 feet), we are unable to see that this language in the decree had any significance at all. ■ •-
As we have said, the testimony indicates that the northwest corner of Section 1 is really about 180 feet east of point A on the western border of the land in dispute. This leaves a corridor through which the tract in controversy may be connected with Bass’s land in Section 36. The appellant forcefully argues that, under the rule governing the apportionment of accretions, he should be awarded a strip 180 feet wide along the west side of the tract in dispute, upon the theory that this strip was an accretion to Bass’s Spanish Grant No. 2334.
The basic rule for apportioning accretions is well understood. It is first necessary to determine what proportionate part of the old bank was owned by each riparian proprietor. The new bank is then divided in the same way by assigning to each proprietor his proportionate share. The division is completed by drawing-lines to connect the points so fixed upon the new bank with the corresponding points of ownership upon the old bank. Hamilton v. Horan, 193 Ark. 85, 97 S. W. 2d 637.
Bass relies upon the apportionment shown in Figure 1, which is based upon one of Bass’s exhibits. This particular apportionment was made in 1918 by a surveyor named Keaton. What Keaton did was to treat the Line of Maximum Recession (the line of the river’s greatest northward progress) as the old bank. The 1918 bank of the river, in between its two points of intersection with the Line of Maximum Recession, was treated as the new bank. Keaton then followed the basic rule of apportionment in dividing the new bank and in drawing his lines. It will be seen from the lines of apportionment on Figure 1 that most of the land in dispute was considered to be an accretion to Spanish Grant No. 2334 and to the small triangle of Section 36 that lay north of the Line of Maximum Recession.
There are two fatal defects in the appellant’s argument. In the first place, there is no sound reason why Keaton’s 1918 apportionment should be accepted as controlling today. The record does not show why Keaton undertook the apportionment. Perhaps his purpose was to fix the boundary between the land now in dispute and the land lying immediately to the west (referred to as the Anderson-Tully Company property)- The fact that Keaton’s line is still the boundary between these two tracts suggests that his purpose was to fix that boundary.
There is no showing, however, that Keaton’s apportionment was accepted by or even known to the own ers of the land now in question. If the apportionment had become binding upon those landowners, either by agreement or by court action, then of course title would have vested and the division would have become a new starting point for the apportionment of future accretions. There is no such proof. The river seems to have been changing its course continually ever since 1819. An apportionment made at any particular time would not divide the accretions in the same way as another apportionment made several decades later. There is no reason today to go back to the particular point in history when Keaton made his survey and to declare that the conclusions he reached somehow became binding for all time upon the owners of the tract now in dispute.
The second flaw in Bass’s argument is equally serious. The Keaton apportionment, in order to be an equitable division of the accretions, must rest upon the assumption that this whole segment of the river constituted a fairly straight line as it gradually moved northward, until it finally flowed in a direct course along the Line of Maximum Recession, etching out that escarpment before beginning its retreat to the south.
We are convinced by the record that this is not what actually happened. Instead, the Line of Maximum Recession was eroded over a period of many years by the northernmost tip of a loop in the river that traveled from west to east. This loop was part of the main channel until it was cut off by an avulsion in 1926 and became an oxbow lake, shown upon Figure 1 as Moody Old River.
On this point the most convincing proof in the record is a number of aerial photographs, the earliest one having been taken in 1930. In these photographs there are plainly discernible lines of erosion, on the upstream side only, that exactly parallel the curving sides of the loop that is now Moody Old River. It is hardly possible for one to study these pictures without becoming convinced that this loop in the stream, which may have had its origin in the bend that appears in Figure 1 as the 1819 channel, did in fact travel downstream, from west to east.
This conclusion is entirely reasonable. It is a matter of common knowledge that a bank is eroded by the pressure of the current against the shoreline. This pressure is naturally apt to be greater on the downstream sides of the loop, causing the oxbow to travel in that direction. Apparently this phenomenon is perfectly well understood, for textbooks upon the subject merely observe as a matter of accepted fact that individual meander loops tend to shift downstream. See Schultz & Cleaves, Geology in Engineering (1955), p. 151; P. R. Van Frank, Random Notes on Improvement of Rivers (1933), p. 124.
The general rule of apportionment, involving the drawing of lines from the old bank to the new, is not to be followed inflexibly, even to the point of injustice. It will not be applied, for example, if there are such irregularities in the shoreline as to make the resulting division inequitable. Malone v. Mobbs, 102 Ark. 542, 146 S. W. 143, Ann. Cas. 1914A, 479.
Keaton’s apportionment is untenable, because it involves the mistaken assumption that these accretions were formed as the river moved from the north to the south. But if, as we think to have been the case, the loop really moved from west to east, then the accretions formed in that direction, and for the purpose of an apportionment the old bank would be the trailing edge of the loop at some selected point in its progress. In that event the lines of apportionment would necessarily run in an easterly or southeasterly direction, so that the land in dispute could not be considered as an accretion to Bass’s lands to the northeast.
As the real plaintiff, Bass had the burden of recovering upon the strength of his own title. The chancellor was right in concluding that that burden was not met.
Affirmed.
Harris, C. J., not participating. | [
-15,
106,
-16,
92,
88,
-24,
42,
-69,
105,
-85,
-27,
83,
-83,
-46,
28,
125,
-29,
-83,
-11,
121,
-58,
-73,
23,
102,
18,
-105,
-7,
-35,
-72,
77,
-11,
86,
78,
96,
-54,
-107,
70,
-32,
-51,
24,
-82,
4,
11,
-51,
-47,
-63,
48,
47,
0,
15,
21,
-65,
-9,
-84,
56,
-31,
41,
44,
89,
41,
64,
-8,
-102,
78,
125,
20,
33,
-60,
-104,
-121,
72,
58,
-112,
48,
8,
-4,
114,
50,
-122,
117,
13,
-99,
8,
34,
99,
90,
-7,
-17,
-72,
40,
38,
30,
-119,
-90,
-42,
8,
67,
-47,
-74,
-71,
124,
16,
7,
126,
-28,
5,
93,
104,
45,
-113,
-44,
-95,
31,
-88,
-100,
3,
-29,
35,
32,
100,
-49,
-22,
93,
71,
112,
-101,
6,
-79
] |
Prank Holt, Associate Justice.
This case involves the question of title to two automobiles. Upon a trial before the Circuit Judge, sitting as a jury, this issue was determined in favor of the appellee, Universal C.I.T. Credit Corporation. The appellant, Snuffy Smith Motors, Inc., contends, in effect, that the appellee is not in a position to claim title as an innocent purchaser.
The appellant, a corporation domiciled in Houston, Texas, is a wholesaler of Volkswagen automobiles which it imports from Germany. On or about April 8 or 9, 1960, appellant had delivered by truck seven (7) Volkswagens to Pat Berry Auto Sales in Benton, Arkansas, a customer of approximately one (1) year. An invoice was delivered with the shipment. On April 11, 1960, the appellant drew seven (7) drafts for $1,600.00 each on its customer, Berry, and forwarded the “envelope drafts” with title documents enclosed in each to Berry’s Benton bank for collection. The drafts were returned uncollected by the bank several times and each time they were sent through again. They were never paid and finally returned by the bank to the appellant. Also, on April 11, 1960, the date of the drafts, Pat Berry “floor planned” with appellee these seven (7) cars, which included the two (2) in question, by giving a chattel mortgage therefor. This chattel mortgage was accepted by appellee under an arrangement between appellee and Berry whereby appellee financed Berry’s inventory of the seven (7) cars to the extent of $1,600.00 on each of these cars, or a total of $11,200.00. Appellee advanced a loan for this amount to Berry on this date. As each automobile was sold by Berry it was the custom for him to pay off the mortgage on the vehicle. This is known as a “floor plan” arrangement. It was customary for appellee to make a periodic check on its customers to determine if the inventory which they financed was in stock. On May 2, 1960 appellee discovered Berry had sold some cars without remitting, pursuant to their agreement. Thereupon appellee invoked the “jeopardy clause” in its chattel mortgage and picked up the balance of the cars it had “floor planned” for Berry, including the two Volkswagens in question, since Berry was unable to make payment for the vehicles he had sold. A few days later appellant learned of this and demanded, as owner, that appellee deliver up the two (2) cars in question, contending that since Berry had never paid appellant for the cars and the necessary title paper had never been delivered by appellant to Berry that appellant was the rightful owner and entitled to possession of these two (2) cars. Appellee refused to deliver possession, whereupon appellant instituted suit for conversion seeking $3,200.00 as the value of the two (2) ears.
In its answer appellee contended that appellant was estopped to assert title by its conduct in delivering possession of the cars to Berry with a written invoice or bill of sale and, further, appellee claimed that it was a bona fide purchaser. Upon a trial the appellant admitted den livering ail invoice with the cars but denied delivering to .Berry any bill of sale, title certificate, or certificate of origin. Claude Hill, a branch manager of appellee and an employee for thirteen (13) years, testified that he approved and initialed the chattel mortgage on the two (2) cars and the issuance of the loan thereon only after there being exhibited to him a bill of sale which he allowed Berry to retain as was the custom. He claimed it was his practice to require evidence of title before approving a loan.
Appellant insists that no bill of sale or evidence of title to the cars was ever delivered to anyone other than the forwarding of the title papers with the “envelope drafts” to the Benton bank. Berry corroborated appellant to the effect that he had never had in his possession a bill of sale or evidence of title to the cars and, therefore, none was ever exhibited to Hill by him or anyone else in connection with the loan. Further, that as a customer of appellee’s he was customarily extended credit by merely giving a chattel mortgage without any supporting evidence of title; that he had blank chattel mortgages furnished by appellee which he, or his nineteen (19) year old nephew, would complete and bring to the Little Rock Office of appellee for approval and if his supply was exhausted, he would come to the Little Rock Office with the necessary information and there execute the necessary chattel mortgage without any evidence of title in either event; he denied that he had signed the particular chattel mortgage in question, although $11,200.00 was advanced to him on this mortgage; he asserted that his nephew handled most of such transactions and he had not authorized him to sign this particular chattel mortgage; he admitted that on one occasion his nephew had borrowed temporarily from the bank a title which had accompanied a draft. He also admitted that he had sold two (2) of the seven (7) Volkswagens to customers without delivery of the necessary title papers, advising them that they would be forthcoming. Appellant, Smith, testified that he had finally collected from Berry on five (5) of the seven (7) cars in this shipment. No other witnesses appeared on behalf of either party.
We agree with the appellant that the only real question presented is whether appellee can claim as an innocent purchaser for value. This question was before the Trial Judge, sitting as a jury, and the evidence adduced was in hopeless conflict. He exercised his right and duty in rendering a decision in this controversy and approved the version of the appellee. We have many times held that on appeal the findings of the Trial Judge, sitting as a jury, must be upheld where there is any substantial evidence to support his decision. Peterson v. Garland County, 188 Ark. 1167, 65 S. W. 2d 18. We are of the opinion that the decision of the Trial Judge in the case at bar is supported by substantial evidence.
It is undisputed in this case that appellant delivered possession of its cars to Berry together with an invoice which contained the name and address of appellant, the price, serial and motor numbers of the seven (7) automobiles and also showed Pat Berry Auto Sales, Benton, Arkansas, as the purchaser. In addition, we find these words as a part of this instrument:
“* * * I hereby certify that no credit has been extended to me for the purchase of this motor vehicle except as appears on the face of this agreement.”
No extension of credit to Berry as a purchaser was indicated on this “invoice” which was prepared and furnished by appellant. The cars in question were in Berry’s possession for almost a month, during which time appellant’s drafts remained unpaid in spite of repeated efforts to collect them. The appellee had done business with Berry over a considerable length of time and this was the first time it had occasion to be wary of him. This was also the first trouble appellant had with Berry. Appellee acted promptly. Appellant did not. Berry admitted that thirty (30) or forty-five (45) days before repossession by appellee [or on a date previous to the chattel mortgage in question] he was informed that in the future evidence of title would have to be exhibited to appellee before approval of a loan. He maintained, however, that they finally excepted new cars and Yolkswagens from this requirement. Appellant admitted that he knew Berry and other such dealers in his position necessarily had to “floor plan” their cars with lending institutions. It was only after repossession that appellee had any knowledge of appellant’s retained interest in the cars. Where one of two innocent parties must suffer, we have held that the burden should be borne by the one whose conduct can be said to have induced the loss. Commercial Credit Co. v. Hardin, 175 Ark. 811, 300 S. W. 434. We think the appellee is least at fault as between it and appellant.
Also, we have held that a bill of sale is sufficient to pass title even in the absence of an assignment of the certificate of title. House v. Hodges, 227 Ark. 458, 299 8. W. 2d 201. There the Court said:
“* * * "We find nothing in the Motor Yehicle Act which states that a bona fide sale of a vehicle cannot be made except by an immediate assignment of certificate of title. It is true that the purchaser cannot obtain a license, nor legally operate the vehicle without obtaining such certificate, and one so doing would be guilty of a misdemeanor, ® * * The failure of appellee to obtain the certificate of title at the time he received the bill of sale does not deprive him of title, for the certificate of title is not title itself but only evidence of title. *' * * Let it simply be added that our statute does not purport to make void, sales which are accomplished without compliance with each provision, where such sale is bona fide.”
It follows, in the case at bar, that a bill of sale was sufficient evidence of title upon which to predicate a valid and enforceable chattel mortgage.
Affirmed.
In this case we do not consider the Certificate of Title Act applicable since this was a transaction between dealers. Ark. Stat. Ann. §75-153 (Kepi. 1957); Ark. Stat. Ann. §75-132 (Repl. 1957). | [
-16,
-4,
40,
110,
14,
-32,
58,
-70,
96,
-59,
55,
-109,
-23,
-30,
4,
53,
-9,
125,
116,
106,
119,
-77,
39,
-16,
-46,
-110,
-39,
85,
-75,
-53,
109,
30,
76,
32,
-62,
-107,
-42,
-62,
-27,
92,
-34,
-96,
41,
96,
-103,
-112,
36,
-37,
4,
79,
65,
-97,
-14,
44,
27,
74,
105,
40,
-5,
57,
-64,
-16,
-104,
5,
125,
22,
-94,
4,
-84,
33,
74,
8,
-112,
57,
56,
-8,
112,
-74,
2,
84,
43,
-103,
-124,
38,
102,
0,
37,
-85,
-12,
-84,
22,
-1,
13,
-113,
86,
77,
10,
1,
-65,
-100,
115,
3,
-122,
-2,
106,
85,
29,
97,
15,
-17,
80,
-109,
15,
114,
28,
11,
-1,
-89,
48,
113,
-51,
-16,
92,
29,
91,
27,
-122,
-12
] |
George Rose Smith, J.
The appellant was convicted of rape and sentenced to life imprisonment.
We find the testimony to be amply sufficient to support the jury’s verdict of guilty. Shortly before ten o’clock on the night of September 28, 1961, the prosecutrix, a young married woman, was alone in a self-service coin-operated laundry in Fayetteville. The defendant came in and persuaded her to get in her car and attempt to start his car by pushing it out a highway. According to the prosecutrix, the defendant was a complete stranger to her.
The defendant’s automobile failed to start after having been pushed for a mile or more, and the de fendant came to a stop beside the highway. The prosecuting witness testified that as she was turning her car around to return to the laundry the defendant came over to the vehicle, forced his way into the driver’s seat, and started driving down the highway. Despite the prosecutrix’s struggles and attempts to escape, the defendant, who weighed nearly 300 pounds, was able to keep her in the car while he turned off the highway and parked behind a little church, where, according to the testimony of the prosecuting witness, he committed the act of rape.
The prosecutrix’s testimony is to some extent corroborated by that of three youths of college age who were driving together that night in Fayetteville. Their attention was attracted to Bishop at about eight thirty, when apparently he ran deliberately into a car that was waiting for a traffic light to change. Later in the evening these boys saw Bishop emerge from the laundry with the prosecutrix, and they decided to follow the two cars out the highway. All three of them testified positively that they could see the prosecutrix fighting and struggling with the defendant just before he turned abruptly off the highway. The boys did not follow Bishop when he left the highway, but after waiting for a few minutes at a point farther down the road they decided to return to Fayetteville, where two of them informed the sheriff of what they had seen.
Bishop was the only witness called by the defense. He testified that he had struck up an acquaintance with the prosecutrix in a record shop, several months before the event in question. Although both of them were married, he succeeded in making several dates with the woman, and they had sexual relations on three of these occasions. Bishop testified that the prosecutrix telephoned him at about nine or nine thirty on the night of the alleged crime, asking him to meet her at the laundry. He was still at work on a construction job between Fayetteville and Springdale and came into town in his work clothes. He testified that after they had failed in their attempt to get Ms car started they drove together to the churchyard, where an act of intercourse took place with the prosecutrix’s co-operation and consent.
The record is large, hut we have narrated the salient facts. It is quite evident that, in spite of the conflicting testimony, the prosecutrix’s version of the matter constitutes substantial evidence sufficient to support the verdict.
It is insisted that the court erred in permitting the three youths to testify about Bishop’s having run into another automobile earlier in the evening, since this incident involved a separate offense. The testimony, however, was undoubtedly relevant, for it explained to the jury why the boys happened to become interested in Bishop’s conduct and hence why they were following him when they observed his struggles with the prosecutrix. As we pointed out in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, independently relevant testimony is admissible even though it may involve proof of another offense.
Defense counsel also objected repeatedly to testimony indicating that on the night in question Bishop was dirty, unshaven, and ill-smelling. This proof had a direct bearing upon the matter of Bishop’s credibility, since the jury might well have believed that he would not have appeared in such an unkempt state if he was telling the truth about his past relationship with the prosecutrix and about her having asked him to meet her that night.
The court properly allowed the prosecuting witness to testify that she identified the accused at the county jail on the day after the offense. French v. State, 231 Ark. 677, 331 S. W. 2d 863. Nor did the court err in permitting the defendant to be cross-examined about prior convictions and offenses, the jury having been instructed that these matters ivere to he considered only as bearing upon the defendant’s credibility. Whittaker v. State, 171 Ark. 762, 286, S. W. 937. We have studied the other assignments in the motion for a new trial and consider them to be without merit.
Affirmed.
Prank Holt, J., disqualified. | [
49,
-94,
-88,
-82,
11,
113,
42,
60,
-14,
-61,
116,
-14,
-83,
-51,
64,
105,
-53,
-23,
85,
97,
-43,
-105,
-105,
100,
-14,
115,
107,
-43,
-73,
-49,
-68,
-12,
77,
112,
-34,
25,
114,
-54,
-51,
88,
-114,
1,
-31,
-16,
18,
-112,
100,
91,
-28,
15,
117,
-98,
-9,
46,
20,
90,
105,
56,
27,
-81,
72,
97,
-108,
-107,
-19,
54,
-95,
-92,
-98,
33,
112,
60,
-39,
-79,
40,
56,
114,
-124,
2,
-12,
45,
-118,
-116,
32,
98,
1,
-11,
-110,
40,
-64,
79,
54,
-116,
-89,
26,
73,
65,
77,
-65,
-111,
104,
80,
35,
108,
-12,
70,
125,
96,
-21,
-117,
-76,
-77,
-49,
40,
-38,
61,
-29,
57,
32,
49,
-55,
-58,
124,
117,
121,
-101,
15,
-77
] |
Paul "Ward, Associate Justice.
Appellant, James Daniel Norman, was found guilty by a jury of the crime of robbery, and tbe court sentenced Mm to six years in tbe penitentiary.
To better understand the issues raised on appeal by appellant, we set out below a summary of the facts and circumstances attending the alleged offense, Ms apprehension, and his trial.
The testimony shows: that appellant (or someone alleged to be appellant) engaged a taxi (driven by A. J. Shepperson) in Memphis at about two a.m. on December 3,1957, for the purpose of driving to Marion, Arkansas; that they drove two miles past Marion when appellant drew a pistol on Shepperson and forced Shepperson to give him $15; that appellant was taken into custody by R. E. Craig (a deputy sheriff) on January 18, 1962, in Hawkinsville, Georgia, where appellant was an inmate of a county prison farm, and; that he was promptly confined in the Crittenden County jail where he remained until tried on September 18, 1962. The information was filed January 29,1962.
Appellant’s contention for a reversal is based on three separate grounds, to-wit: One, introduction of certain evidence; Two, disqualification of the trial judge; and, Three, insufficiency of the evidence.
One. The state, in order to explain the delay (from 1957 to 1962) in trying appellant, and in order to avoid the provisions of Ark. Stats. § 43-1602 and to invoke the provisions of § 43-1604, offered to prove by E. E. Craig that appellant made certain statements to him about the length of time he had served in the Georgia prison. Appellant objected to the testimony, but after the trial court admitted the testimony and explained its purpose, no exception was saved to the ruling of the court. In this situation we are not at liberty to examine the merits of the objection, as was fully explained in Criner v. State, 236 Ark. 220, 365 S. W. 2d 252.
Two. Before the trial began appellant filed a motion, asking the trial judge to disqualify himself and to transfer the cause to another judge. The motion was denied, and appellant saved his exceptions. We have no hesitancy in approving the action of the trial court. However, in explanation of the action of the trial judge and also the attorney who made the motion, we set out below, the attending facts and circumstances.
Previous to the trial the court had appointed an attorney to represent appellant, but, for reasons set out in the record, the attorney requested to be and was relieved of the appointment. Thereupon, the present attorney was appointed to handle the defense. The first attorney’s request was in a letter to the trial judge. Appellant objected to certain portions of the letter which, he thought, might tend to prejudice the trial judge against him. In overruling the motion the trial court commented frankly on the situation, making a full disclosure of his attitude. Among other things the court, in referring to the letter, said: It “did not nor does it at this time cause the court, as it now exists, to have any bias or prejudice against the defendant.”
Appellant, in his brief, commendably admits the trial judge was not disqualified (under the provisions of Article 7, § 20 of the Constitution or Ark. Stats. § 22-113) because of any interest in the case. Appellant suggests that the trial judge might have disqualified himself in keeping with certain language quoted (from 15 R.C.L. 530, § 18) in the case of Hudspeth v. State, 188 Ark. 323, 67 S. W. 2d 191. However, neither the cited opinion nor the quoted language sustains appellant. The latter, in speaking of bias or prejudice as a disqualification of a judge, says “. . . this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person.” In the case under consideration not only are there no facts showing bias or prejudice, but no one even expresses an opinion that either existed. As aptly stated by the trial court at the time the motion was overruled, it could not “in carrying out the duty required of it, disqualify for the reasons alleged. ’ ’
Three. The question raised as to tLe sufficiency of the evidence to sustain the conviction relates only to the identity of the person who robbed Shepperson. Shepperson, on direct examination, was “quite sure” the appellant was the man who robbed him — he saw appellant in the light near the Peabody Hotel in Memphis. On cross-examination the witness appeared to be somewhat less certain, as shown by the following:
‘‘ Q. Remember, you are under oath?
' ‘ A. That is right.
‘ ‘ Q. Sworn to tell the truth ?
‘‘A. That is right.
“Q. Can you, beyond a doubt, say that this is the man, the passenger in your cab that night?
“A. This gentleman looks like the gentleman, only had a shorter haircut.
‘ ‘ Q. Can’t say, positively ?
“A. Five years makes a lot of difference, 'but to me the face of the gentleman looks the same to me.
“ Q. Is it true, you cannot say, positively, this is the man?
“A. I can’t say, under oath, no, I won’t say it.”
Following the above the state introduced a picture of appellant made when he was placed in the Crittenden County jail. On recall of Shepperson by the state this picture was shown to him and he was asked if that was the man who robbed him.
“A. Yes, sir. This is the gentleman.
‘ ‘ Q. Can you tell the jury of whom that is a picture?
“A. That is a picture of the gentleman sitting- over here.
‘ ‘ Q. Can you say —
“A. That is the man right there, he is much heavier there and the crew haircut.
‘ ‘Q. Hair cut similar or different from the man?
“A. Hair cut just about that way, short haircut.
‘ ‘ Q. Does, Mr. Shepperson, does seeing that picture make you any more or less certain of your identification of the defendant?”
“A. I believe, I am more certain.
‘ ‘ Q. What do you tell the jury, Mr. Shepperson, now, about whether this is the man who committed the crime ?
“A. Without a doubt, I believe, this is the man.”
In view of the above testimony we are unwilling to say the jury verdict was not supported by substantial evidence.
Affirmed.
Holt, J., disqualified. | [
112,
-22,
-56,
30,
26,
96,
10,
-70,
66,
-93,
-27,
82,
-87,
-41,
5,
121,
-13,
127,
85,
-7,
-16,
-109,
55,
115,
-78,
-77,
75,
117,
51,
75,
-28,
-44,
8,
96,
-54,
25,
-90,
72,
-27,
-36,
-50,
-95,
-22,
112,
26,
-127,
41,
38,
4,
15,
49,
-114,
-29,
42,
52,
74,
105,
40,
75,
-84,
80,
-103,
-49,
77,
-19,
52,
-93,
6,
-69,
1,
-8,
46,
-100,
-79,
0,
120,
115,
-122,
-126,
116,
111,
-103,
12,
98,
98,
3,
12,
-113,
-88,
-23,
31,
-82,
-107,
-89,
-48,
1,
75,
109,
-97,
-99,
127,
84,
12,
-4,
124,
68,
89,
100,
39,
-113,
-80,
-111,
-115,
44,
-114,
-6,
-21,
1,
112,
113,
-50,
-30,
117,
85,
115,
-101,
-118,
-15
] |
Sam Bobinson, Associate Justice.
Appellee, Mildred Gartman, was sitting in her automobile which was properly parked in front of her home in Sheridan, Arkansas, when appellant, Harold Vanlandingham, drove his car into the back of the Gartman automobile. Mrs. Gartman was seriously injured. She filed this suit against Vanlandingham. He defended on the theory that he ran into the Gartman car in order to avoid striking a little girl that ran across the road in front of him. He was drinking at the time, and there was evidence to the effect that there was no little girl involved. The plaintiff recovered a judgment in the sum of $20,000.00. Vanlandingham has appealed.
There are two issues: First, appellant contends that the court made a reversible error in refusing to give his Instruction No. 2, as follows: “If you believe from the evidence that the sole, direct and proximate cause of the injuries, if any, of Mildred Gartman was some act or omission or conduct on the part of some third party, then it would be your duty to return your verdict in favor of the defendant, Harold Vanlandingham.”
"While Instruction No. 2 may be a correct statement of the law, appellant was in no way prejudiced by the court’s refusal to give it in view of other instructions given at appellant’s request. Appellant’s requested Instruction No. 4 given by the court is as follows: “Under the law no one is legally liable to another for damages caused by an unavoidable mishap.
“If you find and believe from the evidence in this case that insofar as Harold Vanlandingham was concerned, the mishap was an unavoidable one and was not the result of negligence on his part, then your verdict will be in favor of the defendant.”
The court also gave appellant’s Instruction No. 5, as follows: ‘ ‘ When the driver of an automobile is suddenly confronted with an emergency not created by his own negligence, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances.
“If, therefore, you find that Harold Vanlandingham was suddenly confronted with an emergency not created by any negligence on his part, then you will test his conduct by what a reasonably prudent person might have done under the same or similar circumstances, and if you find that he made a choice of conduct such as a reasonably prudent person might have made under those circumstances, then he would not be guilty of negligence, even though it might afterwards appear that it would have been wiser or better for him to have chosen a different course of conduct.”
Jurors are presumed to be intelligent people. They must have understood from the instructions given that appellee could not recover if her injuries were caused solely by some third person. The court is not required to give repetitious instructions. Little Rock Railway & Electric Co. v. Green, 78 Ark. 129, 93 S. W. 752; Nuckols v. Flynn, 228 Ark. 1106, 312 S. W. 2d 444.
The next issue is whether the trial court erred in permitting attorney for plaintiff, appellee, to use a chart he had prepared to illustrate his argument to the jury on the question of damages, particularly damages for pain and suffering. There was evidence that appellee had suffered and would continue to suffer considerable pain. She had asked for a judgment in the sum of $25,000.00. In arguing the amount of damages that should be awarded for pain and suffering, appellee’s attorney illustrated his argument with a chart showing that she had already suffered 521 days, and further, if this item was computed at the rate of $12 per day it would amount to $6,144.00. He further illustrated on the chart that since appellee had a life expectancy of 34 years, if allowed $0.50 per day for future suffering, it would amount to $6,205.00. The trial court overruled appellant’s objection to the use of the chart.
In a matter of this kind the trial court must exercise a sound discretion. If the chart was used in a manner to make it appear to the jury that evidence had been introduced to the effect that appellee’s pain and suffering was worth $12 per day and in the future would be worth $0.50 per day, it would be error to permit the use of the chart because, of course, no such evidence was introduced ; but where, as here, it is perfectly clear that the figures on the chart or blackboard were nothing more than argument by counsel, we cannot say there was an abuse of discretion by the trial court in permitting its use. In John A. Westland, Inc. v. O’Bryan Construction Co., Inc., 187 A. 2d 507, Jan. 2, 1963, the court said: “Neither blackboards nor other forms of visual display may be used with uninhibited freedom. Bone v. General Motors Corporation, Mo., 322 S. W. 2d 916, 71 A. L. R. 2d 361; see also Killary v. Burlington — Lake Champlain Chamber of Commerce, Inc., Vt., 186 A. 2d 170. Courts set themselves against the use of these methods to mislead, or where the use is not fairly based on the evidence. But, by and large, this is an area where the trial court’s authority over the conduct of the trial gives it large discretion, and its exercise of control will not be disturbed lightly. The complaining party must demonstrate prejudice to procure this Court’s intervention. The defendant has not done so here.”
This point has been before a good many courts in the past few years. There is a note on the question of per diem or similar mathmatical basis for fixing pain and suffering in 60 A. L. R. 2d 1347. There is a long annotation on the question of the use of a blackboard, chart, diagram, or placard not introduced in evidence relating to damages in 86 A. L. R. 2d 239. Practically all the cases dealing with the subject are cited. See also Ark. Law. Rev., Vol. 17, No. 1.
In numbers, the cases are about equally divided on the question. We feel, however, that the weight of authority is to the effect that it is not an abuse of discretion for the trial court to permit the use of a blackboard or chart as was done in the case at bar. Several theories have been advanced as a basis for excluding per diem amount arguments for damages for pain and suffering, including: that there is no evidentiary basis for converting pain and suffering into monetary terms; it is improper for counsel to suggest a total amount for pain and suffering, and therefore wrong to suggest per diem amounts; that to do so amounts to the attorney giving testimony, and expressing opinions and conclusions on matters not disclosed by the evidence; and juries frequently are misled thereby into making excessive awards.
In Ratner v. Arrington, 111 So. 2d 82, a great many of the cases in point are cited, and there the court said:
“The items or elements of damages listed on the chart in this case, and which thus were argued to the jury, all were supported by some evidence of established or calculable monetary value, except the elements of ‘pain and suffering’ and ‘physical disability and inability to lead a normal life. ’ As to those two elements, we are not prepared to hold that it was prejudicial error for the trial court to allow counsel for appellee, in argument to the jury, to suggest an amount which he felt would be proper and reasonable to be awarded as damages therefor. Nor do we hold it was error to include a suggested per diem amount approach to such an award.”
In the case at bar, along with other allegations, the plaintiff alleged that she had been damaged by reason of physical pain and mental anguish endured in the past and which she would suffer in the future by reason of the injury sustained. Of course, no witness can say a person has been damaged so much per day by reason of such suffering, and neither can a witness say that a person has been damaged $5,000.00, or any other amount, by reason of suffering; but a plaintiff can allege great pain and suffering and can prove such assertion in various ways. On the other hand, a defendant can deny that there has been any pain and suffering. This is frequently done and evidence is introduced to that effect.
As we see it, there is no sound reason why an attorney in the case should be precluded from arguing the amount of damages that should be awarded for pain and suffering, assuming of course, that evidence has been introduced showing pain and suffering, as was done in the case at bar. Likewise, the defense attorney can argue that none or very little damage has been suffered in that respect. Of course it behooves the courts to see that no unfair tactics are used; for instance, although an attorney might use a chart or blackboard to illustrate his argument, it would not be fair to place the illustration where it could be seen by the jury at times when the attorney was not using it in making his argument. If the jury could see it all day it would be the same as arguing the case all day.
In the case at bar, no unfair tactics were used. It was made perfectly clear that the chart was merely an illustration of the argument; that it was not evidence; and the court specifically limited the jury’s view of it to the time counsel was actually making his argument.
We find no error.
Affirmed. | [
-16,
122,
-48,
46,
9,
96,
50,
90,
97,
23,
-15,
-109,
-85,
-61,
1,
43,
-6,
125,
117,
43,
-43,
-73,
23,
-80,
-14,
83,
113,
-59,
-89,
-55,
124,
-37,
76,
32,
-54,
69,
102,
11,
-59,
86,
-114,
-122,
-87,
104,
25,
-46,
112,
24,
4,
15,
33,
-97,
-29,
46,
26,
74,
105,
44,
43,
-68,
-40,
-80,
77,
15,
111,
6,
-77,
52,
-100,
39,
120,
24,
-128,
-79,
32,
-8,
50,
-94,
-126,
116,
105,
-103,
-120,
-14,
102,
0,
13,
71,
-67,
-103,
14,
-10,
15,
-123,
90,
32,
73,
33,
-105,
-99,
59,
16,
68,
124,
-6,
93,
92,
96,
3,
-54,
-108,
-75,
-19,
-71,
54,
-109,
-17,
5,
48,
117,
-49,
-28,
93,
68,
115,
-101,
-114,
-106
] |
George Rose Smith, J.,
on rehearing. Each side has filed a petition for rehearing. We shall first consider the appellees’ petition.
In seeking a reconsideration the majority faction makes two principal contentions. First, it is insisted that our reference to the differences between the congregational form of church government and other forms of church government implies that a congregational church is subject to judicial control in property matters, while other churches are not.
This is not the case at all. It is unquestionably the duty of the courts to decide legal questions involving the ownership and control of church property regardless of the form of ecclesiastical government that may be in effect. A dispute arising in a congregational church, however, may reach the courts more rapidly than a sim ilar dispute under another form of church government, for there is no possibility of an appeal to higher authority within the denomination.
When recourse is provided within the denomination itself, the complaining parties must avail themselves of that remedy before resorting to the courts. Sanders v. Baggerly, 96 Ark. 117, 135, 131 S. W. 49. Yet in many instances, especially when the controversy is between a local church and the parent organization, the dispute, as far as it concerns property rights, is ultimately determined by the civil courts. For example, an individual church is free to secede from the denomination if it elects to do so, but it cannot take the church property with it where the effect of that action would be to devote the property to doctrines fundamentally different from those to which the property was dedicated. Trustees of Pencoder Presbyterian Church v. Gibson, 26 Del. Ch. 375, 22 Atl. 2d 782; Presbytery of Bismarck v. Allen, 74 N. D. 400, 22 N. W. 2d 625. Conversely, if it is the parent organization that has departed from the basic articles of faith, as by an unauthorized merger with another denomination, the local church has a right not only to secede but also to retain its property. Boyles v. Roberts, 222 Mo. 613, 121 S. W. 805. Thus the differences in the form of church government do affect the procedure by which a property dispute may reach the courts, but there is no discrimination in the rules that are to be applied when the case is eventually submitted for judicial decision.
Secondly, the majority faction presents this argument : ‘ ‘ The court usurped a function of the local church in deciding that certain doctrines were fundamental because differences among the members thereto resulted in a split in the church. In a congregational church, no authority has the power to determine what doctrines are fundamental to that church. This authority to determine doctrine is solely a matter for the church to decide by vote of the membership.”
On the spiritual side the appellees’ position is undoubtedly well taken. The majority group are, as we stated in our original opinion, completely at liberty to adopt any religious beliefs they choose and to engage a pastor who will preach the doctrines of their choice. Nor a court to restrict the exercise of such spiritual rights would clearly involve an inadmissible invasion of religious freedom.
But on the temporal side the appellees are wrong. Here the issue is one of property—nothing more. If the majority prevail in this case they will be entitled to remain in control of the physical church property at Traskwood, while the minority will of necessity have to find another place in which to hold their services. If the minority prevail those two roles will be reversed. Thus, stripped of nonessentials, what the majority are contending for in this litigation is not freedom of religious belief but simply the right to enjoy the possession and the use of tangible church property.
That property, however, was acquired by the church through the contributions and sacrifices of many members, past and present, throughout the sixty years that the Traskwood church has existed. The property was dedicated for use as a Landmark Missionary Baptist church. Even though each Landmark Missionary Baptist church is a self-governing unit, the evidence clearly shows that the Landmark Missionary Baptists are a denomination adhering to certain doctrines that are regarded, and have for many years been regarded, as fundamental. It was to the perpetuation of those doctrines that the property now in question was dedicated by those whose efforts brought about its acquisition.
In this situation the majority faction cannot divert the property to beliefs that radically depart from the purposes to which the property was originally dedicated. A fair statement of the general rule appears in Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114: “While it is true that the North Rocky Mount Missionary Baptist Church is a self-governing unit, a majority of its membership is supreme and is entitled to control its church property only so long as the majority remains true to the fundamental faith, usages, customs, and practices of this particular church, as accepted by both factious before the dispute arose . . .
“A majority of the membership of the North Rocky Mount Missionary Baptist Church may not, as against a faithful minority, divert the property of that church to another denomination, or to the support of doctrines,, usages, customs and practices radically and fundamentally opposed to the characteristic doctrines, usages, customs and practices of that particular church, recognized and accepted by both factions before the dissension, for in such an event the real identity of the church is no longer lodged with the majority group, but resides with the minority adhering to its fundamental faith, usages, customs and practices, before the dissension, who, though small in numbers, are entitled to hold and control the entire property of the church.”
The uncompromising position of these appellees— that as the majority group they are absolutely free to divert the church property to any purpose they choose— was stated and answered in an opinion that has become a classic case in this field of the law: “After the majority has recognized itself a party to a controversy that should be settled in the interest of peace and harmony, the claim that it should itself sit in judgment to determine that controversy is somewhat novel. The minority lay at the door of the majority the charge of heresy. The majority say: ‘We constitute the church. All power is vested in the church, and hence in us. We determine that the charge is false. ’ This is the precise claim made by appellees as to the power of a majority, and it is the precise action taken by appellees as a majority in Mt. Zion Baptist Church ... In view of this, the claim of the majority that ‘if it desires to change to a Mormon church it may do so, and no person or persons, no man or body of men, either civil or ecclesiastical, has any right or power to interfere,’ is not strange. The position leads to this: Consider the majority of a particular Baptist church as guilty of the grossest violations of and the wildest departure from the church covenants and faith. Being accused by the minority, the accused sit in judg ment, which it declares in its favor, and then pleads the judgment it declares as conclusive of its innocence, because no other man or body of men has authority to interfere. However such a rule may serve in purely ecclesiastical relations, we unhesitatingly say the civil law will not adhere to it where the result is to divert trust property from its proper channel.” Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N. W. 81, 13 L.R.A. 198.
The principles announced by the Iowa court are so demonstrably logical, so plainly fair and just, so completely unanswerable, that it is not surprising to find that they have been adopted in 27 of the 28 states in which the question now before us appears to have been considered. In most of the cases cited in the appendix to this opinion the courts granted the relief sought, restoring the faithful minority to the control of the church property. In many of the cases the pastor, who was ordinarily selected by the majority, was also enjoined from using the church property. It is true, of course, that in nearly every instance the court was compelled to determine a delicate issue in a religious controversy—whether there had been such a departure from the original articles of belief as to require the intervention of equity. But, in view of the controlling rule of law, that question becomes an issue of fact governing property rights, and consequently it becomes the duty of the court to decide the question, not as an ecclesiastical determination but as a temporal and judicial issue upon which property rights depend.
(For the benefit of those students of the law who may be inclined to study the authorities in detail, we are citing in an appendix to this opinion one case from each of the 27 jurisdictions which have unequivocally adopted what is overwhelmingly the majority view throughout the United States, with only Texas taking the contrary position.)
The appellees’ petition for rehearing is denied.
The appellants insist in their petition that in merely restraining Elder Dovers from using the church property we did not grant the minority the full relief to which they are entitled by law. Upon further consideration we are of the opinion that this contention is correct. We had hoped to promote unity in the church, but it is evident that our proposed solution to the controversy would not achieve that end. We have no doubt that the members of the majority group are wholly sincere in their adherence to the views expressed by Elder Dovers. That being true, it follows that the majority faction could not conscientiously devote the church property to beliefs conforming to the faith, usages, customs, and practices of this church, as they existed before this schism arose. Thus the dispute is certain to recur in the same form as long as the majority faction is in control of the church property.
The appellants’ petition for rehearing is granted, and the cause is remanded for the entry of a decree placing the appellants in possession of the church property.
APPENDIX
Jurisdictions holding that in a controversy such as this one the courts will enjoin the majority faction from devoting the church property to purposes constituting a fundamental departure from the traditional faith, customs, usages, and practices of the church:
Alabama: Guin v. Johnson, 230 Ala. 427, 161 So. 810.
California: Baker v. Ducker, 79 Calif. 365, 21 P. 764.
Colorado: Baptist City Mission Society v. People’s Tabernacle Congregational Church, 64 Colo. 574, 174 P. 1118, 8 A.L.R. 102.
Connecticut: McAuliffe v. Russian Greek Catholic Church, 130 Conn. 521, 36 Atl. 2d 53.
Delaware: Trustees of Pencader Presbyterian Church v. Gibson, 26 Del. Ch. 375, 22 Atl. 2d 782.
Georgia: Chatfield v. Dennington, 206 Ga. 762, 58 S. E. 2d 842.
Illinois: Stallings v. Finney, 287 Ill. 145, 122 N. E. 369.
Indiana: Smith v. Pedigo, 145 Ind. 361, 33 N. E. 777, 19 L.R.A. 433.
Iowa: Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N. W. 81, 13 L.R.A. 198.
Kansas: Huber v. Thorn, 189 Kan. 631, 371 P. 2d 143.
Kentucky: Parker v. Harper, 295 Ky. 686, 175 S. W. 2d 361.
Michigan: Davis v. Scher, 356 Mich. 291, 97 N. W. 2d 137.
Minnesota: Lindstrom v. Tell, 131 Minn. 203, 154 N. W. 969.
Mississippi: Linton v. Flowers, 230 Miss. 838, 94 So. 2d 615.
Missouri: Boyles v. Roberts, 222 Mo. 613, 121 S. W. 805.
New Hampshire: Hale v. Everett, 53 N. H. 9, 16 Am. Rep. 82.
New Jersey: Grupe v. Rudisill, 101 N.J. Eq. 145, 136 Atl. 911.
New York: Saint Nicholas Ukrainian Orthodox Church v. St. Nicholas Ruthenian (Ukrainian) Greek Catholic Church, 157 N.Y.S. 2d 586.
North Carolina: Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114.
North Dakota: Presbytery of Bismarck v. Allen, 74 N. D. 400, 22 N. W. 2d 625.
Ohio: Kemp v. Lentz, 46 Ohio Law Abs. 28, 68 N. E. 2d 339.
Pennsylvania: Church of God v. Church of God, 355 Pa. 478, 50 Atl. 2d 357.
South Carolina: Middleton v. Ellison, 95 S. C. 158, 78 S. E. 739.
Tennessee: Beard v. Francis, 43 Tenn. App. 513, 309 S. W. 2d 788.
Virginia: Finley v. Brent, 87 Va. 103, 12 S. E. 228.
(Original opinion delivered March. 4, 1963, p. 211.)
West Virginia: Canterbury v. Canterbury, 143 W. Va. 165, 100 S. E. 2d 565.
Wisconsin: Franke v. Mann, 106 Wis. 118, 81 N. W. 1014.
Contra. Texas: First Baptist Church of Paris v. Fort, 93 Tex. 215, 54 S. W. 892, 49 L.R.A. 617.
Carleton Harris, C. J., concurs.
Ed. F. McFaddin, J., dissents. | [
-80,
104,
-48,
-84,
-118,
-92,
35,
14,
66,
-93,
103,
55,
-23,
-54,
17,
45,
-30,
119,
87,
107,
-58,
-74,
22,
0,
-16,
-45,
-9,
-49,
-79,
-19,
118,
127,
76,
-71,
-6,
-35,
118,
-95,
-55,
-44,
6,
3,
-72,
77,
-48,
88,
52,
112,
82,
-113,
81,
-42,
-13,
44,
24,
-61,
105,
40,
95,
-95,
81,
89,
-100,
77,
125,
7,
-111,
100,
-120,
-89,
104,
44,
40,
29,
18,
-8,
115,
-92,
-101,
-45,
79,
-71,
41,
98,
96,
-128,
105,
-2,
-40,
-103,
47,
42,
61,
-25,
-109,
88,
97,
1,
-73,
-69,
101,
64,
35,
124,
-18,
20,
94,
110,
4,
-81,
-106,
-89,
-105,
8,
-102,
3,
-14,
-93,
48,
112,
-51,
22,
94,
99,
51,
-37,
-98,
-120
] |
Sam Eobinson, Associate Justice.
Appellant, B. C. Stevenson, Jr., was charged in the Monroe Circuit Court with murder in the first degree in the killing of Curtis Diamond. Defendant was convicted of murder in the second degree and sentenced to 21 years in the penitentiary. He has appealed.
There is no question about the killing, and there is no doubt about the evidence being sufficient to sustain the verdict. The appellant relied on the theory of self defense as justification for the killing, but by its verdict the jury found that he was not acting in self defense at the time of the killing.
Kissiee Diamond, widow of the deceased, is the sister of appellant, Stevenson. By a former marriage she has a son, Marshall Johnson, age about 14. Curtis Diamond was, therefore, Marshall Johnson’s stepfather. Diamond, contending that his stepson had wrongfully gone into a neighbor’s watermelon patch, gave the boy a severe whipping with a belt, breaking the skin and causing bleeding in more than one place on the boy’s body.
Sometime after the whipping, appellant, Stevenson, age about 24, heard about it. Later, a day or so after the whipping took place, appellant, along with his nephew, Marshall Johnson, and some others, went on a fish fry at an isolated lake. Appellant, Stevenson, carried a pistol, a .38 special. When he returned home about 3:30 in the afternoon, his brother-in-law, Diamond, was sitting on the front porch. Appellant pulled his pistol and shot him down, hitting Diamond once in the chest, and twice in the back, killing him then and there.
On appeal appellant contends first that the court erred in not allowing the introduction in evidence of pictures of Marshall Johnson’s body, taken a year after the whipping, showing scars alleged to have been caused by the punishment. The pictures were taken about six months before the trial. Johnson was a witness for the State, and exhibited his body to the jury. There is no showing that the scars in question were not visible at the time of the trial. The fact that his body was exhibited to the jury would indicate that the scars were visible; otherwise there would have been no point in letting the jury view his body. Whether the introduction in evidence of pictures of a given situation is allowed is largely in the discretion of the trial court. Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621; McGeorge Contracting Co. v. Mizell, 216 Ark. 509; 226 S. W. 2d 556. Here, we do not find that there was an abuse of discretion by the trial court in not permitting in evidence pictures taken a year after the whipping was administered.
In his argument to the jury, the Prosecuting Attorney said: “B. C. Stevenson, Jr. and Will Stewart, Jr. were the only ones who actually witnessed this killing, besides the deceased, Curtis Diamond, and he is not here to testify.” Appellant argues that the court erred in permitting the Prosecuting Attorney to call the jury’s attention to the fact that the deceased could not be there to testify. We fail to see how the argument was in any way erroneous. Prosecuting Attorneys make this same argument in almost every case where only the defendant and the victim were witnesses. The statement that the deceased was not present to testify is merely calling the jury’s attention to an obvious and uncontrovertible fact.
After deceased was shot, he ran into the house and fell dead in the kitchen floor. When officers arrived they found a knife near the body and another knife in the pocket of the deceased. The Sheriff had possession of the knives and also the pistol used by the defendant in the slaying. When he was testifying, he placed these articles, which were in a bag, on the counsel table. In his motion for new trial the defendant alleged newly-discovered evidence stating that he and his counsel first learned about the knives subsequent to the trial.
No diligence is alleged or shown; there is no indication whatever that the officers who found the knives attempted to keep that fact a secret, and there is no indication that they would not have freely discussed the facts with anyone. Moreover, the circumstances of the killing were such that evidence of the knives would not likely change the result in a new trial. It will be recalled that the deceased was shot once in the chest and twice in the back while he was on the front porch.
The court said in St. Louis Southwestern Ry. Co. v. Goodwin, 73 Ark. 528, 84 S. W. 728: “Motions for new trial on the ground of newly discovered evidence are addressed to the sound legal discretion of the trial court. They should show that reasonable diligence was used to discover the evidence. In this case affidavits were filed with the motion to the effect that appellant had used due diligence and done all in its power to discover the evidence, but do not state the acts done which affiants denominate reasonable diligence, . . .”
The court said in Runnels v. State, 28 Ark. 121; “Applications for new trials on the ground of newly discovered evidence are to be received with caution, and this in proportion to the magnitude of the offense. The application should be corroborated by the affidavits of other persons than the accused, and if possible, those of the newly discovered witnesses themselves, and it is not sufficient for the applicant to state that he did not know of the existence of the testimony in time to have brought it forward on the trial, but it must appear that he could not have ascertained it by reasonable diligence.” See also Campbell v. State, 38 Ark. 498; Robinson v. State, 33 Ark. 180.
Finding no error, the judgment is affirmed. | [
112,
-20,
-56,
-100,
58,
96,
-118,
56,
64,
-13,
-29,
-45,
-85,
-58,
73,
109,
56,
47,
85,
121,
-72,
-77,
19,
-63,
-78,
-45,
89,
-41,
51,
73,
-11,
-35,
12,
80,
-54,
-19,
98,
12,
-23,
-44,
-114,
-92,
-7,
80,
82,
18,
36,
126,
20,
23,
21,
-81,
-13,
46,
22,
-25,
73,
46,
91,
-81,
80,
8,
-54,
5,
-83,
16,
-77,
35,
-101,
35,
-6,
46,
-104,
-79,
0,
-24,
83,
-124,
66,
116,
73,
9,
12,
102,
67,
4,
-120,
-50,
-20,
-23,
47,
110,
-100,
-89,
-100,
97,
3,
-116,
-98,
-67,
117,
116,
39,
104,
-9,
68,
28,
104,
37,
-33,
-108,
-111,
-115,
56,
-108,
-78,
-5,
37,
80,
113,
-49,
-94,
84,
37,
121,
-45,
-121,
-45
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.